Working these cases taught me how to improvise new ways to see the evidence and find the unconventional ideas that always yield the best defenses. These experiences are what I build upon in planning the consulting strategies I bring to the table today.
1979 - Texas v. T. Cullen Davis
This case was the culmination of my apprenticeship with Richard "Racehorse" Haynes, from whom I learned to work hard, preserve a sense of humor, and maintain professionalism when the spotlight falls upon you. I also learned to love the lifestyle of the criminal defense lawyer. This was my first trial as a licensed attorney and my first opportunity to contribute something to the defense of a client. I realized that communications of all types have less intrinsic meaning than contextual meaning. We well know what individual words mean, but understanding our intentions requires the study of conversational behavior. I found that my previous experience as a documentary filmmaker taught me how to deconstruct recorded evidence to demonstrate that the intentions of words in conversation are drawn from context, past communications, and expectations. Understanding the complexity of verbal and written communications as evidence would become the cornerstone of my professional career.
1980 - U.S. v. Billy Clayton (Texas Brilab)
What Texas v. Davis's expert linguist, Dr. Roger Shuy, had taught me about using an expert witness to testify about conversational analysis, the Brilab case extended to using cross examination to communicate different perspectives of a conversation's purpose and implications. Using computerized analog tape recorders that allowed Gerry Goldstein and I to randomly access any sentence or phrase we wanted in a recording, we gave focus to the jury's evaluation of both speakers' intentions and revealed the agent/informant's undercover agenda in the pattern of his oral communications with his target. Our success in demonstrating the government's techniques of incrimination from the tape evidence was an important development, because we no longer had to rely on an expert witness to summarize what the jury should recognize about that evidence. This was later described in press accounts as "how to cross examine a tape." It might have been more accurately called "how to cross examine conversational behavior."
1981 - U.S. v. Carlos Marcello (Louisiana Brilab)
Working with co-defendant Charles Roemer II, we were given the opportunity to push the envelope in developing methods of analyzing and categorizing behaviors in speech. My staff and I took many dozens of hours of recordings and broke each conversation down into what topics were discussed, the informant's patterns of language behavior, and identified each reference to every person, place, or thing in many tens of thousands of words in the conversations. Working with such a large scale of evidence was impossible without computers. Necessity became the mother of invention, and I turned to the programming language of our pre-PC word processors to build computer code that would organize our every linguistic observation into a comprehensive lexicon of the conversants' communication patterns, content, and especially the informant's behavior in his use of words, topics, change of subject, and repetition. Reliance on computers in the analysis of complicated facts in speech and written text was for us already a foregone conclusion, long before personal computing entered the legal mainstream.
1982 - U. S. v. Civella (the trial in the movie "Casino")
Working with attorneys Ephraim Margolin and Oscar Goodman, I appeared as an expert witness on the organization and discovery review process of this massive wiretap case. The Court recognized the insurmountable imbalance between the logistic and financial resources of defendants and the resources of the federal government in the organization and analysis of large quantities of wiretapped conversations. The Court ordered rough draft transcripts to be prepared by the government and provided to the defense. This case was a harbinger of days to come when thousands of hours of surveillance, millions of documents, and gigabytes of digital discovery are not at all unusual impediments to a lawyer's effort to adequately defend a client.
1983 - U.S. v. Chagra
Before our client, attorney Joe Chagra, entered into a plea agreement for his role in the assasination of Federal Judge John Woods, preparation for the pre-trial motion hearings allowed us to perform some of the most aggressive electronic sureveillance analysis done to that date on thousands of hours of electronic surveilance. We had to learn on the fly how to systematically cross-reference descriptions of recordings' content in investigative and court documents with the actual recordings on a massive scale. In support of a pre-trial motion to supress, we isolated blatant misrepresentations of statements made in wiretaps that were intentionally mischaracterized by agents in mandatory progress reports the court relied upon in authorizing continuing intercepts. This case provided a test of how large a scale of intercept data we could integrate into a systematic critical review process.
1985 - U. S. v. Mallory Horne
This political corruption acquittal of the former President of the Florida State Senate and Speaker of the House was due in part to the detailed scrutiny and notation of each conversational nuance in many dozens of hours of recorded conversation using computers and computerized recorders. As with previous cases, we used linguistic tactics to demonstrate the innocent intent of Mallory Horne and his nephew and presented the audio evidence in court. My team performed much of this work at the trial location, proving that our technology and our know how were portable to the trial venue.
1987 - U.S. v. Faulkner
The Dallas "I-30" fraud case occurred in the wake of the collapse of the savings and loan industry. Assisting the defendant Danny Faulkner, we created a fully staffed law office in an unoccupied strip mall dedicated solely to preparing his case. In an era before digital images and PDF files, we used computer guided microfilm machines to access a million plus document discovery set. This analog tool for accessing images of documents paralleled the random access of recorded evidence by analog computer tape recorders. Technology in transition from paper to microfiche to digital media accelerated lawyers' access to voluminous discovery documents and posed the problem of what could be done with so much evidence, now that computers were capable of managing it.
1990 - U.S. v. Allstar Pipe
Working with Houston attorney Edward Mallett in this criminal antitrust case against corporate executives, we assembled a team to research a vast array of corporate sales data, performing economic modeling exercises to demonstrate that pricing changes worked no anti-competitive effect. Ed and I also employed laptops to research discovery in court and to present exhibits.
1991 - U.S. v. Dave Foreman
As one of EarthFirst co-founder and radical environmentalist Dave Foreman's attorneys, I was asked to lead and train a team of volunteer activists as tape and document evidence analysts. We also coordinated discovery review for the other defendants with differing priorities and trial strategies. The training of novice volunteers to succesfully use our own computer document review protocols in a collective team analysis of the evidence would become a standard for building ad hoc, case-specific organizations to prepare complex cases.
1993 - U.S. v. Goldin
This Mobile, Alabama, trial involved family members accused of fraud in their corporate scrap businesses. Working for all defendants, we prepared comprehensive databases of both the recorded and document evidence and presented all defense exhibits by digital projection, an uncommon practice in 1993. We also used digital audio files of tape recordings before the jury instead of analog tape recorders. In court, we installed an elaborate courtroom computer evidence display system, including a dedicated phone/modem line to facilitate voice and data communications to legal support staff at several law offices. Our efforts supported six attorneys in defense of their clients and displayed select exhibits and recordings at trial. All individual defendants were acquitted.
1997 - U.S. v. Timothy McVeigh
A little publicized fact about the Oklahoma City Bombing case was that most of the government discovery documents were databased and analyzed in our Houston office, after being trucked in from Oklahoma under guard in the middle of the night. The McVeigh case allowed me to combine many of the new practices and methods I had spent the last decade developing.
We assembled a team of recent law school graduates and trained them to conduct our own methods of collaborative document analysis and databasing. Four months before trial, we transferred our operations to Denver, training a thirty-plus member litigation support and trial team in the use of networked digital litigation support resources with remote computer access to our litigation support capabilities for our investigative team.
As trial began, we moved the hub of our case and evidence management to the courtroom, having a portable server onsite with full Internet access, email, file transfer, and messaging capabilities both in the courtroom and back to our Denver offices. We were also able to direct staff in ongoing legal, investigative, and administrative tasks while court was in session. We were prepared to offer all defense exhibits digitally and produce video exhibits for the sentencing phase of the trial. We managed the staging of defense witnesses and prepared daily digital folios of relevant discovery and investigative dossiers to each defense counsel's courtroom computer for every prosecution and defense witness. While much of these efforts might seem state of the art in a technologically sophisticated trial in 2015, they were unheard of eighteen years ago.
2002 - U. S. v. Dub Giles
Assisting Carl Hughes of Oklahoma City with the defense of a nursing home magnate accused of bribery and corruption of a public official, we created a law office from an empty rental space, furnished, equipped, and staffed it in 72 hours to begin a review of both video and audio recordings and a substantial set of corporate documents. We also designed our own databases to focus specifically on recovering discovery information relevant to the nursing home industry and to our client's pattern of behavior in his business decision making. As with other smaller cases early in the last decade, our homegrown litgation support applications gave us an advantage in custom tailoring discovery analysis to the vocabulary of the industry involved in the allegations. Team training in analytical methods among the inexperienced young lawyer analysts and the application of discovery research to drill down to the industry specifcs in the evidence was instrumental to this case.
2004 - U.S. v. Juan Pena
Working again with Gerry Goldstein in representing an attorney defendant, we quickly assembled a multi-lingual team for transcription and document review after first winning a continuance based on the massive scale of the informant's recordings with our client and others. We impressed the District Court by simply using our single spaced index of conversations as a prop, spreading it out on the courtroom counsel table until it dropped off the other end and rolled along for some distance across the floor. The dramatic scale of the recorded conversations was obvious before a word was spoken. Sometimes, a visual aid, even if only an index taped end to end, can be a powerful argument.
Working in both San Antonio and Edinburg, with limited time and two languages, we developed a multi-tiered review process with staff working very long hours, first transcribing the recordings into Spanish and then translating Spanish transcripts to English to avoid mixing errors of transcription with errors of translation. We also made up for lost time with a marathon document databasing review project that brought us to a trial-ready state several days in advance of trial.
2006 - 2007 - U.S. v. Plotkin
Working with Justin Walder and Alan Silber, we organized an in-house team of staff and contract paralegals to review and analyze well over a million pages of discovery material in this multi-party tax fraud conspiracy case. The Walder Hayden & Brogan discovery review team also supported other counsel, providing them with full remote encrypted access to our multiple custom-built email, document, native digital content discovery databases. We worked closely with the clients in their own rigorous review of the discovery and with financial and tax consultants. Meeting the needs of an elite collection of attorneys at elite firms in New Jersey, New York and Washington, D.C. required innovative litgation support that built a fact-learning team for the day to day analytical process and connected their work to a lawyer/client/consultant user group. Constant collaboration between the internal review team members, coupled with instant feedback from counsel, staff, and consultants, is the only effective means of syncopating different working groups' strategic thinking about the evidence.
2009 - 2010 - U.S. v. Robert Allen Stanford
Brought into the case by lead attorneys Kent Schaffer and Mac Secrest, I was to be responsible for the litigation support and discovery anaylysis efforts of the Stanford defense team before we ultimately withdrew from the case. Although quickly emersed in a conflict over insurance coverage for attorney's fees that inhibited the deployment of full scale review operation, we initially had to confront the tactical, professional and financial differences that have become common between defense teams in multi-party white collar defense work. How attorneys negotiate the litigation support technology and budget issues between co-defendants' counsel as they initiate a joint defense discovery review is one of the first and most influential challenges lawyers face in complex discovery cases.
When attorneys have very different litigation support project scopes, financial resources, and client agendas, not to mention different law firm cultures, we must be able to work though those challenges before we approach the complexity of the evidence itself. Today, there is the real risk that the disputes over discovery review methods and contractors, stirred on by the relentless self-promotion of corporate litigation support vendors, will defeat the collaborative opportunities available to litigators during only a small window before trial preparation begins. The future will bring few successes in multi-party complex criminal defense litigation, if the litigation support elements of trial preparation lose the constructive advantages of forging "one out of many" and dissipate energy by pursuing discovery review objectives as "many ones."
2010 - 2011 - Texas v. Stockton
Invited to assist attorneys Mac Secrest and Todd Benett in this recorded evidence arson case, we combined recordings, cell data and discovery documents into an integrated trial preparation cycle that that concluded with the outright dismissal of all charges. Collaborating in trial preparation as a member of this defense team reminded me that there are still lawyers and cases that affirm why we became trial lawyers, why the work is so meaningful and personally rewarding. There are still conscientious lawyers working together to explore the evidence as deeply as they can, finding connections, building upon each others' insights, riding the wave of exultation when the favorable facts emerge from obscurity, and being rocked by the consequences when they do not. These experiences define our profession whether we ply our trade with quill pens or computers.
2011 - U.S. v. Martinez
Working with Maryland Deputy Federal Public Defender Joe Balter in the defense of a young American Muslim being prosecuted on domestic terrorism charges, the defense team collaborated in a detailed analysis of the undercover practices of the FBI in this domestic terrorism investigation. The experience of assessing manipulative undercover practices down to a granular level brought us all to new insights about the nature of undercover domestic terror operations and the nature of those who become targets.
2013 - 2015 - U.S. v Cardinalle
For over two years, our team was involved in the organization, analysis and tactical decision making in a massive undercover case of more than 900 hours of recorded evidence recorded by a single co-operating individual. Our defense strategy required us to parse through the conversations word by word to analyze topic patterns and test, against all forms of evidence, every statement made by other defendant's about our client in numerous recordings to which our client was not a party. In the thousands of pages of transcripts, verified by repeated listening to every detail of the audio recordings, we were able to map out the language behaviors and both the open and concealed agendas of several other defendants. We used our large scale analysis of this long term, complex set of communications to demonstrate the marginal role our client played and to fully document our contentions of his minimal culpability. Even when a case is resolved with a plea, there is a a substantial difference in the outcome when the defendant not only pleads for leniency, but provides a narrative of proof from the many justifications for it in the government's own recorded evidence.