Handwriting On The Wall (And In The FBI’s Notes)

Wisdom about recordings.

Wisdom about recordings.

As the father of a college-bound high school senior and an eventually college-bound high school sophomore, I pass along to them helpful articles.  Whether, in the ancient words of Archbishop Cramner in the Anglican liturgy, they actually “read, learn and inwardly digest” the articles I send them is an open question, but it gives me an uneasy assurance of the discharge of paternal duty.

I passed along to my children a recent Wall Street Journal article that posed the question Can Handwriting Make You Smarter? The article concluded:

Students who took handwritten notes generally outperformed students who typed their notes via computer, researchers at Princeton University and the University of California at Los Angeles found. Compared with those who type their notes, people who write them out in longhand appear to learn better, retain information longer, and more readily grasp new ideas, according to experiments by other researchers who also compared note-taking techniques.

Handwriting is scripturally important, as King Belshazzar finds out in Daniel 5:1-9:

King Belshazzar made a great feast for a thousand of his lords and drank wine in front of the thousand. Belshazzar, when he tasted the wine, commanded that the vessels of gold and of silver that Nebuchadnezzar his father[had taken out of the temple in Jerusalem be brought, that the king and his lords, his wives, and his concubines might drink from them. Then they brought in the golden vessels that had been taken out of the temple, the house of God in Jerusalem, and the king and his lords, his wives, and his concubines drank from them. They drank wine and praised the gods of gold and silver, bronze, iron, wood, and stone.

Immediately the fingers of a human hand appeared and wrote on the plaster of the wall of the king’s palace, opposite the lampstand. And the king saw the hand as it wrote. Then the king’s color changed, and his thoughts alarmed him; his limbs gave way, and his knees knocked together. The king called loudly to bring in the enchanters, the Chaldeans, and the astrologers. The king declared[ to the wise men of Babylon, “Whoever reads this writing, and shows me its interpretation, shall be clothed with purple and have a chain of gold around his neck and shall be the third ruler in the kingdom.” Then all the king’s wise men came in, but they could not read the writing or make known to the king the interpretation.  Then King Belshazzar was greatly alarmed, and his color changed, and his lords were perplexed.

FBI training.

FBI training.

Being greatly alarmed, having your color change and seeing your lords perplexed are all often incident to an FBI interview.

Here is another perplexing question: why do FBI agents (and most other federal criminal investigators) not record witness interviews but rather rely on handwritten notes?  A layperson could be forgiven for assuming that the agents, unlike the students in the Journal article, are mostly interested in creating a complete, objective record that could be relied upon later. State criminal investigators, in contrast, often do tape-record interviews.  (I realize that to say “tape” record is an anachronistic usage.  Anachronism is the least of my sins).

FBI agents do not record witness interviews except by handwritten notes, with a recently-added policy exception for custodial interviews (that is, when the witness is in custody and has been given a Miranda warning).  Why so?

FBI Agent Dale Cooper's recorder from "Twin Peaks"

FBI Agent Dale Cooper’s recorder from “Twin Peaks”

Here is a useful post by Brian Jacobs of Morvillo Abramowitz Grand Iason & Anello P.C. on the subject: Why Do Federal Agents Still Take Interview Notes by Hand?.  In particular, he suggests that agents at least be required to take notes by laptop:

Another explanation for why the standard practice has gone largely unchallenged might be that when a witness interview is memorialized in an agent’s hand-written notes, there will necessarily be ambiguities, and those ambiguities can have benefits for both the government and the witness. For example, to the extent a witness’s story changes between the initial interview and trial it will be more difficult for defense counsel at trial to impeach the witness’s testimony with handwritten notes than with a typed record. This helps both the government as well as the witness him or herself.

. . . .

Of course, if the goal is to have a perfect record of witness interviews, then they should all be recorded and transcribed. That would be a worthwhile goal for the government to pursue. In fact, the government itself has gestured in this direction: Deputy Attorney General Cole’s memo calling for the recording of custodial statements also encouraged “agents and prosecutors to consider electronic recording in investigative or other circumstances” beyond custodial interviews. Until recording and transcription become the norm, however, the government should consider taking interview notes on a laptop computer. This method works for law students; it can work for federal agents.

The goal, of course, is not to have a perfect record.

To give and receive good dictation.

To give and receive good dictation.

In FBI witness interviews, there are almost two agents.  One is the questioner who focuses on the witness and one is the secretary who takes note.  When the witness says something inconsistent with the Government’s theory, or exculpatory of a target (or of the witness, for that matter), it is not uncommon to see the “clerical” agent simply stop writing until the witness gets back on a preferred course.  Taking notes by hand allows agents to perform this start-and-stop procedure, whereas a recording would capture everything said.

 

And where are Forms 301 and 303?

And where are Forms 301 and 303?

The FBI agent’s notes are turned into “302s,” interview memoranda so nicknamed from their federal-form number.

Although there is little “discovery” in criminal cases as compared to civil lawsuits, the government must frequently disclose “302s” to defendants when those 302s contain Brady material (that is, statements or other information tending to show the innocence of the defendant); Jencks material (statements of Government witnesses); or Giglio material (statements or writings tending to impeach or diminish the credibility of Government witnesses).

The problem is obvious: with each memorialization from notes to memorandum, something is lost in translation, whether intentionally or not.  The translation-loss is why the standing criminal-discovery orders in some federal courts require the case agents to maintain their notes and also why it is good practice for defense counsel to demand that the agents preserve (and disclose) their notes, although the latter demand is sometimes a tall order.

Should you receive the underlying notes in discovery, the lost-in-translation problem becomes more pungent — and unfixable — because in the creation of her handwritten notes the agent has complete discretion.  When we combine that editorial discretion with the The Efrem Zimbalist, Jr. Syndrome, the interviewee is in an impossible position:

“Government Agents,” a Lightfoot140 by Jack Sharman. from LFW on Vimeo.

This issue has been addressed before by Douglas Starr in The New Yorker (The F.B.I.’s Interrogations, Finally on Film);  by Tim Cushing in TechDirt (Your Word Against Ours: How The FBI’s ‘No Electronic Recording’ Policy Rigs The Game… And Destroys Its Credibility ) and by David Drumm (guest blogging for Jonathan Turley) (Why The FBI Doesn’t Record Interrogations).  Starr raises a useful point about recording policies and trial effects in federal versus state or tribal trials:

The federal government is, in this respect, far behind the states. Alaska required recording in 1985, followed by Minnesota, in 1994; now twenty states require it, as do the District of Columbia and hundreds of individual precincts. States with big Indian reservations have provided a sort of controlled experiment in the differences between federal agents, who did not record, and local police, who did. On the reservations, tribal officers investigate misdemeanors, while agents from the Bureau of Indian Affairs and the F.B.I. investigate major crimes such as murder, rape, and arson. Once charged, the suspect faces indictment in federal court, generally in a major city off the reservation. Paul Charlton, a former U.S. Attorney for Arizona, recalls many trials in which even the most minimally competent defense lawyer would know enough to contrast the behavior of F.B.I. agents with that of the local police. In “long, excruciating cross-examinations,” those lawyers would ask agents if the Bureau owned a recording device; if it was small enough to take to the Navajo reservation; if the device had an On button; if the agents knew how to use the On button … and on and on, until the agents’ refusal to record the interrogation seemed nothing short of ridiculous.

“So we would either lose cases, plea down cases, or find some lesser charge,” Charlton said. He got so tired of the situation that he ordered all federal investigators in Arizona to record interrogations, the rules notwithstanding. That helped to put him on the wrong side of the U.S. Attorney General at the time, Alberto Gonzales, who eventually dismissed him along with eight other U.S. Attorneys in a controversial mass firing in 2006.

An even more useful “lab” for comparison is an investigation conducted by a joint federal/state team.  The state agent tape-records Jane Smith’s interview; the federal agent just takes handwritten notes.  In discovery, you may then get from the Government the state-agent’s tape and the federal agent’s 302 of the same interview.  The discrepancies can be fertile ground for cross-examination and for motions to compel production of the federal agent’s handwritten notes.

In an age of iPhones and voice-over-internet-protocols, is there any longer a meaningful reason for criminal interviews to not be recorded?  Witness interviews are often the basis for federal false-statement charges under 18 U.S.C 1001.  What is at least part of the evidence that the statements are “false,” according to the Government?  Because the agent gets on the stand and says, “Here is what the witness said to me, as reflected in my 302 [or my notes].”  If a trial seeks the truth, would we not rather know what the witness said, actually?

If a false statement is about untruth, cannot jurors also handle the truth?


Barry Bonds, Ramblin’ Man

The federal appeals court in San Francisco recently reversed baseball player Barry Bonds’s conviction for obstruction of justice.

Grand jury slugfest.

Grand jury slugfest.

The criminal charge and conviction arose out of testimony that Bonds gave to a grand jury investigating the illegal provision and use of steroids in major league baseball.  As the Ninth Circuit Court of Appeals summarized it:

During a grand jury proceeding, defendant gave a rambling, nonresponsive answer to a simple question.  Because there is insufficient evidence that Statement C was material, defendant’s conviction for obstruction of justice in violation of 18 U.S.C. 1503 is not supported by the record. Whatever section 1503’s scope may be in other circumstances, defendant’s conviction here must be reversed.

Why is this decision relevant to corporations, their employees and their lawyers?

Interview

In interviews by government agents, in grand jury testimony led by prosecutors or in testimony at trial, a witness gets a lot of bad questions and gives a lot of bad answers. “Bad” answers are not necessarily untruthful. They may be vague; or not responsive to the question; or simply an observation made into the air in order to fill the silence.

Even well-prepared witnesses fall victim to this syndrome. Invariably, they fail to (a) listen to the question; (b) answer the question; and (c) stop. If it’s incomprehensible question, they fail to ask for a new question.  If it’s a question they don’t like, they answer some other, unasked question.

This problem is particularly acute with business people. In general, business people are compensated for having answers to questions and solutions to problems. To respond “I just don’t know” or “I don’t get your question” is not well received in commerce. Business people are trying to do a deal and “get to yes.”  “Yes” is not the place that agents, prosecutors and regulators seek. (At least, not that kind of “yes.”)

Sharp haircuts, dull questions.

Sharp haircuts, dull questions.

We have discussed here and here  and here the do’s and don’t’s of interactions with government agents.  In particular, do not fall prey to the Efrem Zimbalist, Jr. syndrome.

That lesson is worth repeating:

“Government Agents,” a Lightfoot140 by Jack Sharman. from LFW on Vimeo.


St. Valentine’s Day Massacre and the Cocktails That Go With It

We avoid sentimentality, but the culture is awash in it on Valentine’s Day.  This “holiday” is not traditionally associated with business crime, but we will do our best.  The day is sometimes associated with alcohol, and this year happens to fall on a Friday.  We acquit ourselves well in this latter regard.

A contentious meeting of the Audit Committee

A contentious meeting of the Audit Committee

Here’s a story about the February 14, 1929 slaughter from the Chicago Tribunethe St. Valentine’s Day Massacre:

On this frigid morning, in an unheated brick garage at 2122 N. Clark St., seven men were lined up against a whitewashed wall and pumped with 90 bullets from submachine guns, shotguns and a revolver. It was the most infamous of all gangland slayings in America, and it savagely achieved its purpose–the elimination of the last challenge to Al Capone for the mantle of crime boss in Chicago. By 1929, Capone’s only real threat was George “Bugs” Moran, who headed his own gang and what was left of Dion O’Banion’s band of bootleggers. Moran had long despised Capone, mockingly referring to him as “The Beast.”

At about 10:30 a.m., four men burst into the SMC Cartage Co. garage that Moran used for his illegal business. Two of the men were dressed as police officers. The quartet presumably announced a raid and ordered the seven men inside the garage to line up against a wall. Then they opened fire. Witnesses, alerted by the rat-a-tat staccato of submachine guns, watched as the gunmen sped off in a black Cadillac touring car that looked like the kind police used, complete with siren, gong and rifle rack.The victims, killed outright or left dying in the garage, included Frank “Hock” Gusenberg, Moran’s enforcer, and his brother, Peter “Goosy” Gusenberg. Four of the other victims were Moran gangsters, but the seventh dead man was Dr. Reinhardt Schwimmer, an optician who cavorted with criminals for thrills. Missing that morning was Capone’s prize, Moran, who slept in.

Capone missed the excitement too. Vacationing at his retreat at Palm Island, Fla., he had an alibi for his whereabouts and disclaimed knowledge of the coldblooded killings. Few believed him. No one ever went to jail for pulling a trigger in the Clark Street garage, which was demolished in 1967.

We’ve seen internal investigations that look worse.  As in the white-collar context, do not give the Government an unrelated reason to investigate you:

The St. Valentine’s Day Massacre on February 14, 1929, might be regarded as the culminating violence of the Chicago gang era, as seven members or associates of the “Bugs” Moran mob were machine-gunned against a garage wall by rivals posing as police. The massacre was generally ascribed to the Capone mob, although Al himself was in Florida.

The investigative jurisdiction of the Bureau of Investigation during the 1920s and early 1930s was more limited than it is now, and the gang warfare and depredations of the period were not within the Bureau’s investigative authority.

The Bureau’s investigation of Al Capone arose from his reluctance to appear before a federal grand jury on March 12, 1929 in response to a subpoena. On March 11, his lawyers formally filed for postponement of his appearance, submitting a physician’s affidavit dated March 5, which attested that Capone had been suffering from bronchial pneumonia in Miami, had been confined to bed from January 13 to February 23, and that it would be dangerous to Capone’s health to travel to Chicago. His appearance date before the grand jury was re-set for March 20.

On request of the U.S. Attorney’s Office, Bureau of Investigation agents obtained statements to the effect that Capone had attended race tracks in the Miami area, that he had made a plane trip to Bimini

Hemingway learns from Capone: submachine gun, cocktail and sun hat

Hemingway learns from Capone: submachine gun, cocktail and sun hat

and a cruise to Nassau, that he had been interviewed at the office of the Dade County Solicitor, and that he had appeared in good health on each of those occasions.

As we know, Capone was ultimately convicted of tax evasion.

More urgently, and as Papa Hemingway and Al Capone would doubtless approve, here is a roundup of recent cocktail notes of interest.

The Dorothy Parker American Gin martini

The Dorothy Parker American Gin martini

From the Boston Herald, the Dorothy Parker American Gin martini (from Harding’s in Manhattan).

Despite this claim from the New York Times that the dirty martini cleans up well, I still loathe dirty martinis. They are too briny, and an affectation.

Keep the olives on the side.

Keep the olives on the side. 
A little too floral

A little too floral

 

 

The Boston Globe has ten cocktails you are not ordering but should be.  I am unconvinced, but a couple are worthwhile:

The Martinez: Consider it the grandfather to the martini, or at least its classy next door neighbor. Typically a combination of Old Tom gin, sweet vermouth, maraschino liqueur, Angostura bitters, but there are variations and improvements out there. Order if you love Manhattans, but would like to take a step to the left.

The Corpse Reviver #2: London gin, absinthe, Cointreau, Lillet Blanc, lemon juice: equal parts of everything to awaken your palate, drive conversation, and please your bartender. Order if you’ve seen your last lemon drop. Just make sure to ask if the bar carries absinthe first.

The former bears history, the latter anesthesia.

Mixing up an "Avenue" at Del Posto

Mixing up an “Avenue” at Del Posto

For a bar in a New York restaurant, I would love to try Del Posto, an elegant space with cocktails to match.  And, as a general drinking reference for grown-up cocktails, try A Quiet Drink, which presents “bars and restaurants where one can have grown-up conversation over a good drink.”

A Drink Before the War (1994)

A Drink Before the War (1994)

Finally, one cannot leave the subject of a quiet drink without thinking of the private-eye novel that made Dennis Lehane‘s name, A Drink Before the War (1994).  Lehane is superb, and Drink the best place to start.