B.3.b.The Failure to Produce the March 22, 1993 Barksdale Interview [b3b]
[This section along with Sections B.3 and B.3a may be found as a separate pdf with notes as footnotes by means of this link.]
As discussed in Section B.3, Maurice L. Barksdale was a crucial witness with regard to the Arama funding.
In the August 20, 1993 letter in which Robert E. O’Neill and Paula A. Sweeney belatedly disclosed exculpatory information from witness statements, they included four statements from Barksdale.The fourth statement read:
Barksdale stated that, when Deborah Dean would call him, sometimes she would say that she was calling on the Secretary's behalf and sometimes she would just call herself, but that, any time she called, Barksdale assumed that she was calling on behalf of the Secretary's office because she was an Executive Assistant and reported to the Secretary. Barksdale also said that, if he was asked to consider a funding situation that his staff had recommended against or there was no way in the world that it legitimately could be put together or worked out, he would ask to speak to the Secretary and would ask the Secretary whether in fact Deborah Dean was really representing him; according to Barksdale, in many situations the Secretary would say yes.
The August 20, 1993 letter did not provide dates for any of the statements in the letter.After Dean’s counsel requested the dates, by letter dated August 29, 1993, O’Neill and Sweeney provided the requested dates, including, for the quoted Barksdale statement, the date of March 22, 1993.
When the Independent Counsel made its Jencks production on Barksdale, it provided nine items, none dated subsequent to June 29, 1992, and none bearing dates of a nature whereby a transposition or other typographical error might cause the date to be erroneously recorded as March 22, 1993.
Because the March 22, 1993 interview of Barksdale was substantially more recent than the Jencks materials actually produced, there was reason to believe it could be more revealing than the other interviews.For it was likely to involve follow-up questions that Independent Counsel attorneys had in preparing the case for trial.Further, the interview took place shortly after Barksdale’s Special Assistant Stuart Davis testified to the grand jury that he (Davis) maintained a notebook for Barksdale recording all the projects funded, the number of units, the consultant and developer involved, and the name of the project (see Dean February 1997 Mem., Section III A.2.d).That testimony was directly contradictory to the Barksdale testimony on which the court of appeals would specifically rely in upholding the conviction on Arama.
Thus, there is reason to believe that the interview report contained information even more exculpatory than the information Independent Counsel attorneys provided from the interview in the August 20, 1993 letter, and that, precisely for that reason, those attorneys decided not to produce it.Assuming they were aware of the reference in the August 29, 1993 letter, they took the chance that the defense that was then being swamped with Jencks and Giglio materials would not realize that an item mentioned in the August 29, 1993 letter was never produced, which in fact proved to be the case.
I first recognized the discrepancy between the August 29, 1993 letter and the list of Barksdale Jencks materials sometime near the end of 1995.By letter of January 3, 1996, I brought the matter to the attention of Independent Counsel Larry D. Thompson, suggesting that he promptly provide the interview report to the defense and that he determine why the interview was not provided to the defense during the trial.
Thompson never responded to me on the matter and never contacted the defense on the matter.When Dean filed her December 1996 motion to dismiss Count One, she noted (at 16 n.14) that the interview had never been produced.In the Government's Opposition to Defendant Dean's Motion for a New Trial at 14 n.4 (Jan. 15, 1997), the Independent Counsel said it could not tell whether the interview report had originally been produced.It also stated that any exculpatory information in it had been provided in the August 20, 1993 letter.Apart from the arrogance of this statement, one can safely assume the Independent Counsel attorneys making it did so without the least consideration of whether it was true or not.[i]At any rate, the Independent Counsel still failed to produce the interview report and ultimately never did.
One might note that, assuming that Independent Counsel attorneys simply failed to make this item available to the defense at all because it contained exculpatory materials, this conduct on the part of Independent Counsel attorneys differs from the many instances where those attorneys failed to identify exculpatory statements, failed to segregate exculpatory documents, and even hid exculpatory documents (seeSection B.7a), but at least did make the relevant materials available to defense.Yet the fact that this is the only instance that has been discovered where an interview report was never produced at all hardly suggests that such failure to produce did not occur.Rather it merely indicates that there may be many instances where documentary materials that were exculpatory of the defendant were never produced but where Independent Counsel attorneys left no tell-tale sign of the existence of such materials such as occurred in the August 29, 1993 letter.
The same may be said regarding to the allegation of the former document manager discussed in Section B.9 that Independent Counsel Arlin M. Adams and Deputy Independent Counsel Bruce C. Swartz altered or destroyed interview reports that did not advance the government’s case.The only identified instance where information surfaced providing strong reason to believe that an interview report was altered involved the Aristides Martinez interview discussed in Section B.9a.But as with the unusual circumstances that revealed that the March 22, 1993 Barksdale interview was never produced to the defense, as a rule only unusual circumstances will reveal that a document had been altered.See the March 10, 2011 Truth in Justice item styled “Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material” regarding the failure to produce an interview report discussing the Sankin Harvard Business School application that, as discussed in Section B.7a, was initially not disclosed at all and then hidden.
With regard to the altering of interview reports, some might be reluctant to believe that the Independent Counsel and Deputy Independent Counsel would do these things themselves.But it is precisely because the alteration of interview reports is something that even the most unprincipled attorneys are reluctant to do that there exist strong reasons for the persons in charge of the prosecution to do such things themselves.
[i]The quoted part of the interview states that when Barksdale checked with Secretary Pierce regarding whether what Dean had told him in fact reflected the Secretary’s wishes, “in many situations the Secretary would say yes.” As presented, the statement suggests that in some situations the Secretary said no.In any case, obviously Barksdale was asked whether there occurred any situations where the Secretary said no and, if there had been, such fact would have been used at trial.Thus, one must assume that in some manner or another Barksdale affirmed that the Secretary had said yes on every occasion.This exculpatory information that should have been produced.