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Judge Throws Out RICO Claims Against Johnson & Johnson, by Shannon P. Duffy, The Legal Intelligencer
Exclusive to KNOW, The Magazine for Paralegals
From Justice Dream Job to Nightmare
Tamarah Grimes, Justice Department Paralegal:
Why This Whistleblower Was Dissed & Dismissed
By Andrew Kreig, J.D., M.S.L.
As federal prosecutors prepared in 2006 for the corruption trial of
But just a year later, the prosecution’s all-out effort to convict Siegelman and HealthSouth CEO Richard Scrushy brought Grimes to a career crisis.
In July 2007, Grimes stepped forward to allege that her colleagues had violated basic legal protections to ensure a fair trial. She claimed, for example, that prosecutors had communicated with jurors. Also, she said pro-conviction jurors had privately strategized by email outside the jury room to obtain guilty verdicts -- all without required notification to the defense. Moreover, she complained of sexually offensive comments by colleagues, particularly in an off-site prosecutors’ office that was entirely devoted to what they called “The Big Case.”
Even though she used federally authorized procedures for such complaints, stepping forward turned her career dream into a nightmare. What follows is her story, including a year of federal threats to prosecute her on what she calls false claims that she taped a colleague.
"I have always considered myself to be a moderate Republican,” she said. “I believe in the U.S. Constitution, and that what happened in
June 1, 2009, she wrote the Obama administration’s Attorney General Eric Holder outlining misconduct allegations and asking for his help. But DoJ fired her seven days later for failure to retain a security clearance – which DoJ itself had removed in 2008. At the same time, she was regarded elsewhere as one of the nation’s leading whistleblowers for shedding light on the Siegelman conviction, which has become the most controversial criminal prosecution of the entire Bush administration.
“I did nothing to justify termination,” she told KNOW. “I was a loyal, exemplary employee with no discipline problems and many performance-based awards prior to my complaints.”
The Big Case
But in July 2007, Grimes stepped forward precisely when her office was basking in its victory against
The prosecution path had been hard. Public expectations of guilt were fueled by years of pre-trial newspaper leaks of evidence against Siegelman, the state’s governor from 1999 to 2003 at a time when many other state and federal offices were turning from Democratic to Republican leadership. Despite their high hopes, Bush administration prosecutors were forced to dismiss their charges against Siegelman during his first trial in 2004. Prosecutors gave up in mid-trial after failing to remove Birmingham-based Chief U.S. District Judge U.W. Clemon, who would later describe the prosecution in a letter to Holder as “the most unfounded” he had overseen in nearly 30 years as a federal judge.
The DoJ outcome was much better on during a second trial. Siegelman was convicted on revised charges before a different judge in Montgomery, Chief U.S. District Judge Mark Fuller*, even though Siegelman had been so confident of vindication that he was running for re-election that spring.
The jury convicted Siegelman on seven of 32 bribery-related charges. The charges primarily stemmed from donations by Scrushy beginning in 1999 to a non-profit that advocated more state spending for education via a lottery. Later in 1999, Siegelman reappointed Scrushy to a state board on which Scrushy had served under three previous Republican governors.
Under threat of a multi-year year prison sentence for separate bribery allegations, former Siegelman aide Nick Bailey adjusted his prior testimony to suggest in the second trial that Scrushy’s reappointment to the state board seemed like a bribe payoff. The theory was Scrushy’s donations to the education non-profit helped relieve Siegelman from any obligations he might incur from personally guaranteeing debts from helping launch a pro-lottery education group to fight a massive anti-lottery public relations campaign secretly funded by casino lobbyist Jack Abramoff.
As further vindication for the prosecution in the public eye, Judge Fuller ordered the defendants each to serve seven-year prison terms without permitting the appeal bonds customary for white-collar defendants. Authorities removed the defendants from the court in shackles, with tearful families members prevented from saying goodbye.
A Paralegal’s Trial
Grimes, meanwhile, was undergoing her own ordeal.
“When Leura Canary discovered I had filed the complaints, she was furious,” Grimes recalled in an interview with KNOW, as amplified in adjoining interview highlights. “She called me into her office to threaten and intimidate me. On a pretext, she fired one of the witnesses identified in my complaint, an assistant
From Nov. 1 to 2, 2007, Grimes was required to testify at a mediation conducted by Sharon Stokes, a deputy chief of the Department’s civil division in a Georgia U.S. attorney’s office.
On Sept. 28, 2008, the Justice Department issued a 41-page report by Associate Attorney Gen. David Margolis concluding that Grimes deserved to be fired for taping her colleagues. According to that report:
Mediator Stokes believes the words “tapes” and/or “tape recordings” were used during her conversation with Ms. Grimes….Mediator Stokes is unclear whether the use of the word “tapes” was a direct quote from Ms. Grimes or if that was Mediator Stokes’ understanding of what Ms. Grimes was telling her….She is confident, however, that Ms. Grimes advised her that she had tape recordings and a written journal…..Mediator Stokes’ contemporaneous hand-written notes contain the word “tapes.”
The Grimes Version
When Grimes denied making tapes authorities sought her indictment for false statements, although George federal prosecutors declined to prosecute her after a year of investigation. Grimes hired lawyer Scott Boudreaux for defense, and then had to hire another attorney when the government made Boudreau ineligible for representation by calling him as a witness. In his testimony, Boudreaux denied the government’s contention that his client had ever given him any tapes, journal or notes supporting her complaint. But Grimes was placed on administrative leave and stripped of her security clearances.
Grimes provided the following account:
I expected the Department to conduct a fair and impartial investigation into my allegations. On Nov. 1, 2007, the Executive Office for U.S. Attorneys Equal Employment Opportunity [EEO] staff conducted an active mediation of my claims. At that time, the mediator informed me that the EEO staff would not address the whistleblower allegations. I was told it was highly unusual for the U.S. Attorney to attend a simple mediation. But I arrived to find a defiant Leura Canary present and ready to take the lead role. This is consistent with Leura Canary’s usual practice in regard to anything pertaining to the Siegelman/Scrushy prosecution.
In her KNOW interview, Grimes said the evidence indicated that key players from the mediation except for her met after its first day in the lobby bar of the Embassy Suites in Montgomery for several hours. Participants included Leura Canary, her First Assistant (and first cousin) Patricia Watson, and Stokes. They discussed what Grimes characterized as a plan that helped Canary “divest herself of a particularly persistent thorn in her paw.”
Grimes told KNOW:
According to sworn statements given by Mrs. Watson and Mrs. Canary, at some point and without any basis, Mrs. Watson suggested that it was possible that I had made taped recordings while at the offsite location to support my EEO claims. I later learned that Mrs. Canary expressed her "concern” that these imaginary tapes might contain grand jury information sensitive to the Siegelman/Scrushy prosecution, or other sensitive law enforcement information, and/or privileged or work product material. She further suggested that these imaginary tapes might have been disclosed by me outside the DoJ. These conversations were openly discussed in a crowded public bar.
Grimes continued in her KNOW interview:
Mrs. Canary consistently claimed to have “important friends” in
The main thing is that I never said I had made tape recordings. That is a false claim. The no-win nature of the process is that the only alleged evidence is a claim that I made a verbal claim that I had a tape, and yet I was being criminally accused of denying it. There is no audio-tape. No smoking gun. Just several hours by my interrogators spent socializing in a bar and a fanciful leap of their imaginations.
DoJ Finds Itself Blameless
On Sept. 28, 2008, however, the Justice Department issued a 41-page report signed by Associate Attorney Gen. David Margolis absolving
The report also rejected Grimes’s allegations that the Justice Department spent an unreasonable amount of money to secure the convictions, including the hiring of private paralegals to handle work at the special off-site headquarters for the Siegelman effort instead of using government paralegals more. The report said that the $532,000 spent to hire private paralegals for the government’s case against Siegelman was reasonable for four years of work by one employee and two years by another.
In her interview, Grimes characterized the off-site prosecution headquarters as out-of-control, with a prosecution team plagued by “a false sense of invulnerability and omnipotence.” She said:
I expressed my concerns directly to upper management about certain practices which I observed with alarming frequency in the preparation of the prosecution for The Big Case. In response, I was told that as a paralegal I had no standing to question the decisions of a prosecutor. Further, I was told that if Leura Canary found out I had done so I would certainly be subject to disciplinary action. This was even though I previously had an exemplary record, and had received a promotion to GS-12 just three months prior.
Big Picture on Prosecutions
But the core of the Grimes allegations of government misconduct was unfairness in trial procedures, not their cost. To pursue the inquiry, the U.S. House Judiciary Committee wrote an eight-page letter last November asking U.S. Attorney Gen. Michael Mukasey to respond. Mukasey failed to do write back.
As broader context, the Judiciary Committee has cited studies by
Scrushy and Siegelman contacted Grimes late this spring as they prepared major filings seeking a new trial based on new evidence discovered since 2006.Among their evidence were sworn statements in 2007 by
As a staunch Republican, Simpson said she was a longtime volunteer in opposition research who worked to defeat Siegelman. This involved, she said in 2007 interviews with CBS “60 Minutes” and KNOW, her agreement to requests from Rove that she try to obtain a photo of the governor and his aide Nick Bailey that could be used to imply they had a sexual relationship. She said she kept an eye-peeled in 2001 and 2002 at political events attracting the governor to her home region of northeast
Despite years in the rough-and-tumble of
Each of those named have denied Simpson’s allegations, although none have done so under oath and subject to cross-examination except Rove in his long-awaited testimony to House Judiciary staff in July behind closed-doors. Fuller has denied any bias, and the Justice Department wrote in an appeals court brief that one reasonable person in the
Another allegation by defendants in their appeal was that the government’s main witness Bailey now says that prosecutors pressured him through repeated coaching sessions to change his testimony without required disclosure of notes of his coaching sessions to the defense. Bailey and his employer, businessman Stan Pate, also swore in June that prosecutors threatened to expose Bailey’s sexual partners and prosecute them if the witness did not provide the desired testimony against Siegelman and Scrushy. Pate swore that Bailey was extremely frightened during the years of federal prosecution and imprisonment, which included a coaching session at a military base involving a lead prosecutor in the Siegelman case with joint civilian and military responsibilities.
‘No One Helps You’
Defendants also approached Grimes for her cooperation late last spring in seeking a new trial. As a government employee, she detailed her concerns in the June 1 letter to Holder, requesting his help. Seven days later, the Justice Department fired her. She said the Department also cut off health benefits for her and her family, which includes a disabled son who requires constant care.
"No one helps you," said Grimes, who added that Congress needs to enhance protections for whistleblowers to prevent wrongdoing by government officials.
Justice Department spokesman Tracy Schmaler responded, “The Department takes seriously its obligation under the whistleblower law, and did not violate it with regards to the termination of this employee. For privacy reasons, it would be inappropriate to comment any further on this personnel matter at this time.”
The government also filed arguments July 28 rejecting the request by defendants for a new trial, or even a hearing on the new evidence. Public Integrity Section Chief William Welch, the department’s highest-ranking official for examining investigations of public officials nationwide. Welch co-signed the brief echoing his bias argument on Judge Fuller that not one reasonable person anywhere in the nation would think a hearing justified.
Welch’s confidence about public support was impressive given that CBS “60 Minutes” broadcast on Feb. 24, 2008 revelations about the improper coaching of Bailey and Simpson’s description of her attempt to obtain a photo of Siegelman that could be used for sexual innuendos against the defendant.
The CBS show included a statement by Arizona’s former Attorney Gen. Grant Woods, a Republican then co-chairing John McCain’s GOP Presidential campaign, saying that federal authorities prosecuted Siegelman because it was the only way they could “get rid” of the state’s most popular Democrat. Indeed, Woods was one of 75 former state attorneys general from more than 40 states who have filed unprecedented comments with authorities protesting that Scrushy’s donation to the non-profit foundation was not a crime for either defendant.
Ironically, Welch was himself under criminal investigation as of this writing for alleged prosecutorial misconduct in winning the conviction last fall of former U.S. Sen. Ted Stevens (R-Alaska). In Washington, DC, U.S. District Judge Emmet Sullivan initiated the probe of Welch’s office out of concerns that the government withheld evidence from the Stevens defense. The trial judge’s pressure persuaded Holder to vacate the convictions of Stevens.
Grimes, however, remains in limbo. She earned a master’s degree this summer in the field of human relations. Still fighting to restore medical benefits under COBRA for her family, she also retained hope that she might one day be vindicated herself and be able to return to the Justice Department as a paralegal.
That result might be implausible, especially since the Obama administration has proven far from sympathetic to those challenging DoJ procedures in disputed cases. Siegelman, 63, and released on bond by court order pending appeal, this summer faced a sentence of 20 years in prison from Fuller at the recommendation of Canary’s office and presumably with the endorsement of top Obama officials. Scrushy, 56, remained in prison.
The Grimes story is inspiring said Jill Simpson, a lifelong
But she didn’t mind tweaking opponents by adding, “Isn't it amazing that the big-shots who sent innocent people to prison around the country are still on the government payroll?"
Grimes herself remained hopeful even after the bone-chilling experiences that she protested:
I trained to be a paralegal, and worked for six years at what should be the highest level of public service in my field, the U.S. Justice Department, receiving a merit promotion in 2005 before this started. I am very motivated. These people attempted to subject an exemplary federal employee with an unblemished record to selective prosecution based solely upon false statements that were concocted during an evening in a bar. I am not the person who should be prosecuted for this.
“I intend to fight as hard and as long as necessary to restore my credibility and good name,” Grimes said. “This is not only for myself, but for other federal whistleblowers.”
For more stories on this topic, read Andrew Kreig's column in The Huffington Post.
This article exclusive to KNOW, The Magazine for Paralegals. Reprint by permission only.
*Photo credit: Mark Fuller photo by Phil Fleming.
Think your salary is fair & equitable? Responses might just depend on your gender:
"We’re coming up on Equal Pay Day again. That’s the day in April every year—this year the 24th—when women’s earnings finally catch up with what men made by December 31 of the previous year. Women’s groups, led by the National Committee on Pay Equity, will rally on Capitol Hill to call attention to the issue.
"The pay gap is still a stubborn problem, with women who work full time, year-round making 76 cents to a man’s dollar. Though it consistently polls number one with female voters in election years, politicians don’t seem motivated to do much about it.
"Some people say pay disparities between women and men are an illusion—women just like to choose jobs that pay less because they’re not as risky or have shorter hours. But the data don’t back up these claims [PDF]. Even when researchers take into account such factors as part-time work or time out of the work force to care for kids, the numbers show that men make more. Another problem that just won’t go away is that so-called 'men’s jobs' like plumbing, pay more than 'women’s jobs,' like nursing. That tells us something about what we value as a society, and it’s not women’s work."
Author Martha Burk is a political psychologist and director of the Corporate Acountability Project for the National Council of Women's Organizations.
What was this firm thinking?
"A Forest Hills law firm has agreed to settle a second sexual harassment lawsuit brought by the U.S. Equal Employment Opportunity Commission, a rare occurrence.
"The agency announced the latest settlement last week with Rappaport Hertz Cherson & Rosenthal. The EEOC had sued on behalf of Melissa Castillo, a Bronx resident who worked as a paralegal for the law firm from May 2003 to August 2004.
"The EEOC attorney handling the latest litigation said the agency sued because of Castillo's allegations and because Rappaport had violated a three-year consent decree it signed in December 2003, prohibiting it from sexual harassment. That decree was still in effect when the agency brought the second lawsuit in 2005 in U.S. District Court in Brooklyn."
Firm's press release on winning the case also acknowledges paralegals!
"On July 11, 2006, the Firm [Simpson Thacher & Bartlett] won the dismissal of a consolidated ERISA putative class action filed against American Electric Power. The dismissal of this ERISA action culminated four years of litigation in which the Firm successfully achieved the dismissal of each of a large number of litigations filed against AEP, including federal court securities class actions, state and federal court derivative actions, and federal court ERISA actions.
"The Simpson Thacher team includes Michael Chepiga, Joe McLaughlin, George Wang, Charlie Divine, Issa Mikel and paralegals Mario Hyacinth and Tracy Williams."
We've discussed this topic before so it's quite surprising that so few employers have published policies on blogging!
"Weblogs are booming, but the latest survey conducted by the Employment Law Alliance, a large network of employment and labor lawyers, is reporting that only about 15% of employers have specific policies addressing work-related blogging.
"It is estimated that as many as 5% of the American work force -- millions of workers -- are maintaining online personal diaries called blogs.
"'While employee-bloggers have some legal protection, blogs create substantial new issues for employers,'" said Kurt Sherwood, labor and employment attorney at Miller, Canfield, Paddock and Stone, P.L.C. "'It is the latest, complex workplace concern -- beyond camera cell phones and employees downloading illegal music.'"
Note, IBM has created blogging guidelines. Has your firm or company?