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Brad Reid

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Rule Following Is for Both Government and Citizens

Posted: 12/03/11 02:47 PM ET

News reports have spread concerning the Motion to Dismiss granted on December first by Central District of California federal District Judge A. Howard Matz that overturns the Foreign Corrupt Practices Act convictions of Lindsey Manufacturing Company, Keith E. Lindsey, and Steven K. Lee. The important lesson for all is that "winning" is not the only thing. Winning is the outcome of superior products and services in the business context. Winning in law should mean that justice under law is served.

I am reminded of the line in the movie, The Devil's Advocate: "Lose? I don't lose -- I win! I win! I'm a lawyer, that's my job, that's what I do!" So in business and law there is always the temptation to game the system. Can a container be shaped to appear to have more volume than it actually has? Can statements be taken out of context to make a witness look bad? Is the desire for power and control so strong an emotion that it overrides our humanity? We hope not but fear that it does.

So what did Judge Matz have to say in forty pages? A summary paragraph at the beginning says it all:

"In this Court's experience, almost all of the prosecutors in the Office of the United States Attorney for this district consistently display admirable professionalism, integrity and fairness. So it is with deep regret that this Court is compelled to find that the Government team allowed a key FBI agent to testify untruthfully before the grand jury, inserted material falsehoods into affidavits submitted to magistrate judges in support of applications for search warrants and seizure warrants, improperly reviewed e-mail communications between one Defendant and her lawyer, recklessly failed to comply with its discovery obligations, posed questions to certain witnesses in violation of the Court's rulings, engaged in questionable behavior during closing argument and even made misrepresentations to the Court."

The closest statement that Judge Matz makes that addresses motivation is that "charges were filed against them as a result of a sloppy, incomplete and notably over-zealous investigation, an investigation that was so flawed that the Government's lawyers tried to prevent inquiry into it." So it appears that Judge Matz is suggesting a sequence from sloppiness and zeal to cover-up. Sometimes there is a sentiment that believes that since we "know" that they are guilty anyway, a little rule bending to prove it is ok. In business it is easy to think that since our product is "truly superior", a little exaggeration to persuade consumers to purchase is ok.

Tellingly Judge Matz quotes the Ninth Circuit in United States v. Chapman that "[a] court may exercise its supervisory power to implement a remedy for the violation of a recognized statutory or constitutional right; to preserve judicial integrity by ensuring that a conviction rests on considerations validly before a jury; and to deter future illegal conduct." This is what distinguishes a society governed by rule of law rather than strength of personality. We want to know and must know that rule following is for both government and citizens.