Friday, July 13, 2007

White Collar Defense Lawyer:

Truth Hard To Find
When Investigating
Political Corruption

By Atty. Jim Bergenn

Honest public service, investigative reporting and criminal investigations all reside together at intersection of everything important in a constitutional democracy.

An allegation of dishonesty or corruption is inappropriately ruinous to a public servant if it is only based upon implications, but not provable to a unanimous jury beyond a reasonable doubt. Responsible and well-reputed journalists and prosecutors understand this well, excercising seasoned discretion before "coming out" with a charge of corruption.

Law enforcement authorities should only charge a crime against public figures or professionals who have invested a lifetime in developing a reputation when they have good and convincing evidence. News articles on alleged corruption, on the other hand, require a lesser threshold of evidence but can be a significant as a criminal charge. Accordingly, reporters should be vigilant to be confident in their proof and balanced in their assessment of it, so as not to set up an artificial distinction between the subject politician and his or her peers. For example, since all elected officials need to raise funds, none can escape the need to walk some fuzzy ethical lines doing so and simultaneously maintaining a scrupulously honest image. The latter is not easily recovered once tainted.

It was a combination of luck and talent that freshman Congressman Chris Murphy was able to turn around the notoriously accusatory Johnson campaign ad about his being friendly with drug dealers. It was the end of such luck and talent when Rowland, on the other hand, could not shake the Courant's investigative reporters and the federal prosecutors, having to plead guilty to "crimes" when those deeply familiar with the actual facts and law would concede that it was very problematic imagining a fair jury concluding beyond a reasonable doubt, unanimously, that the gifts he received were connected in his mind to any official act he did.

While no one doubts the critical and valuable role of the investigative journalists in uncovering the criminal corruption of Ellef, Rowland's chief of staff, and some political pillory of Rowland as the elected executive responsible for the goings on under his nose, most recognize the likely truth that none of the "receipts of value" were ever thought by Rowland to connect to anything he was doing in office. Surely no badge of honor was due, but that appropriate compromise plea bargain does illustrate how challenging it is to responsibly perform investigative functions.

I have seen innocent public figures and professionals get unfairly hurt by those excercising such roles without the appropriate discipline or restraint. While we citizens and news consumers may feast on the salacious stories developing around an accused, both truth itself and someone's lifelong effort to build a reputation can quickly become collateral damage when a prosecutor or reporter succombs to the temptation to proceed prematurely.

The opposite is also true, where no one touches some wrongdoers even though their conduct is indistinguishable from others whose corruption is exposed.

High professional standards for journalists and prosecutors require the best judgment at the cross section between the unfettered and vigorous marketplace of ideas and political rivalry on the one hand and the need for some personal sanctuary for those who have earned a reputation for integrity on the other. Unless or until there are solid facts to show otherwise, restraint is required of the ambitious professionals who investigate and then prosecute or report. All of us are vulnerable to corruption, and those who act prematurely to accuse are not so distinguishable from those rightly convicted.

Bergenn, of Hartford's Shipman & Goodwin, is a recognized expert on white collar crime.

  • Bergenn @ Shipman & Goodwin

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