Lawyer Weighs Kilpatrick's Choices

Detroit Mayor Kwame Kilpatrick says he'll keep his job while he fights his case. Stanley Brand, a DC-based lawyer who's defended many elected officials in high profile cases, discusses the tricky business of surviving scandal.

Copyright © 2008 NPR. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

MICHEL MARTIN, host:

And now we're going to turn to Stanley Brand, a regular on the list of Washington, D.C.'s top lawyers. He's represented too many public officials to name, but two of them were former Congressman Dan Rostenkowski and Bill Gray. Mr. Brand, thanks for joining us.

Mr. STANLEY BRAND (Attorney): Good to be with you.

MARTIN: I should mention that we also reached out to prosecutor Kym Worthy who did want to join us, but we couldn't find a mutually agreeable time. Also in our interview, Mr. Webb said that his office had not received the charging document - they did receive it late yesterday afternoon, and the mayor and Ms. Beatty are expected to be arraigned today. So Stanley, to you. First, you heard the outlines of the defense. Mr. Webb says that testimony in a civil case is rarely elevated to perjury, that perjury is rarely prosecuted in a civil case. True?

Mr. BRAND: Well, unfortunately not since President Clinton was subjected to criminal investigation in the Paula Jones lawsuit. And since then, in my own judgment, and I agree with him it's bad policy, we've been in a dissent into criminalization of a whole host of testimonial issues, starting with Martha Stewart and others. So the fact is the prosecutorial mores have changed, and we are now clearly in a situation where everyone who testifies in a civil case is at risk.

MARTIN: The argument that the prosecutor makes, however, is that this is not, as in the Paula Jones case, a private matter between two parties, but that in fact spoke to the duties of both parties. That these were police officers who say they were fired because they were doing their job and that the mayor in fact fired them to protect his personal business, and then used public funding to cover it up. Does that change the standard?

Mr. BRAND: Yeah, it does. The lawsuit, the testimony, the alleged perjurious testimony was adduced in a case about the city's liability to employees. Like the Elliot Spitzer case where it wasn't simply about prostitution, it was about sending large amounts of cash to a known illegal enterprise and using the means of interstate commerce to achieve that. And it may even be broader than that given recent revelations about Governor Spitzer's involvement in Trooper Gate, in Albany.

MARTIN: What about the selective prosecution argument? Mr. Webb says that this, that particular office has never brought a perjury case in a civil matter in that county. Is that a fair argument? But there's only one Mayor.

Mr. BRAND: Well, selective prosecution is a difficult row to hoe for any defense lawyer. You must show a particular animus and basis for asserting that other similarly situations were not prosecuted. I, well, from what I hear Mr. Webb saying, that's not going to be his defense. His defense is going to be pretty much that these weren't intentionally misleading statements, and I think he has a fair shot at that with a jury because juries are very reluctant to convict people for perjury absent very, very clear evidence of stark contrast in truth-telling.

MARTIN: What about the fact that Mayor Kilpatrick says he has no intention of resigning? Realistically though, you have been in so many of these cases where you have defended public officials - can he realistically both prepare for this case and run his, and do his job?

Mr. BRAND: Yeah, the only issue there is the legal issue. Which is, what collateral attack could be made on his position as an office-holder? When you have a member of Congress who's indicted, for instance, you have the possibility that the House or Senate will discipline them and expel them from office. In a president, or in the case of a governor, you have the possibility of impeachment.

That's why Governor Spitzer, I think, resigned because the wheels were already turning in Albany to begin impeachment proceedings if he did not. So in the absence of any legal authority to remove him from office, while charges are pending, I'm sure he can stay in office.

MARTIN: We're going to take a short break in a minute, but just to sort of briefly, the Detroit City Council has voted almost unanimously to ask him to resign. Does that have any bearing on this?

Mr. BRAND: No, that's political. You know, that's placatory. They can't enforce that until he's convicted - is my understanding of Michigan law.

MARTIN: We're going to pause here for a short break.

I'm Michel Martin. The conversation continues on Tell Me More from NPR News.

I'm Michel Martin, and you're listening to Tell Me More from NPR News. We're going to continue our conversation with Washington D.C. lawyer Stanley Brand about the charges brought against Detroit Mayor Kwame Kilpatrick. Just briefly, Mr. Webb, Kwame Kilpatrick's lawyer, complained that the prosecutor wouldn't meet with him in advance of filing these charges. I think that might be confusing to some people. Is that customary for prosecutors to meet with defense counsel to discuss things prior to a charge? And is there a basis for his - what he seemed to be suggesting is that there was some treatment there, the differential treatment that would not be a courtesy that would be afforded another defendant was not afforded his?

Mr. BRAND: I don't know what went on there. I find those meetings generally useless because what you wind up doing as a defense lawyer is giving away your case, and then they decide they're going to indict you anyway. The give and take that occurs in those meetings is mostly give by the defense and take by the prosecution. It is true that a wise prosecutor will generally meet with the defense to see if any kind of plea or accommodation can be made.

Given Mr. Webb's history for hard-nosed trial advocacy, which I greatly admired him for, I can't imagine anything constructive would have come out of such a meeting. And there's certainly nothing legally required about it.

MARTIN: We should mention that Mr. Webb previously represented the former governor of Illinois, for example, George Ryan. Now, speaking of a plea arrangement, the prosecutor has been asked repeatedly if Mr. Kilpatrick should resign. She says that's not her call. But is there any precedent for prosecutors securing an offer to resign in exchange for more favorable in a criminal prosecution of a public official?

Mr. BRAND: Yeah, this always happens sort of sub-rosa. There's no express agreement. Many, many years ago there was a congressman, Josh Eilberg from Philadelphia, who basically resigned in exchange for a one-count plea deal on a bribery conflict of interest case. And the unspoken rumor in Philadelphia was, and the prosecutor wrote an op-ed piece saying he accepted that plea because, in effect, he got rid of this guy, corrupt guy from the legislature, and that was an appropriate policy to advance.

Most prosecutors won't admit to that because there's something coercive, there's something undemocratic, it seems, about forcing an elected official from office without any ratification from the electorate. We have Congressman Jefferson who's been indicted in a bribery case in Louisiana. He's been reelected since he was charged. And so, there's some thought that that would be an inappropriate, inadmissible way to allow prosecutors to skew the political system. And that's why they rightfully usually say it didn't mean anything to their decision.

MARTIN: And finally, as a public official, there are two courts here. There's the courthouse. There is this court of public opinion. Do they interact? I mean, how do you advise your clients to address both of those at once? Because as you heard Kwame Kilpatrick say, I'm not going to be talking to you. I'm not going to be answering questions about this. And that's a change for him, because he has a reputation for being very accessible to the public, to the media. He says I can't talk about this. But how does he handle both?

Mr. BRAND: Well, he can't because everything he says can be used against him in the trial. I guess, for me, the equation's an easy one. If he's vindicated at trial, then he'll be vindicated politically. If he's not, it will be very difficult, it seems to me, for him to stay in office or be reelected. And that's how most of these cases work out.

MARTIN: All right. Well, Stanley, maybe you'll come back and talk to us as this case proceeds.

Mr. BRAND: Sure.

MARTIN: Stanley Brand of the Brand Law Group joined us here in our studios in Washington. Thank you so much.

Mr. BRAND: You're welcome.

Copyright © 2008 NPR. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to NPR. This transcript is provided for personal, noncommercial use only, pursuant to our Terms of Use. Any other use requires NPR's prior permission. Visit our permissions page for further information.

NPR transcripts are created on a rush deadline by a contractor for NPR, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of NPR's programming is the audio.

Comments

 

Please keep your community civil. All comments must follow the NPR.org Community rules and terms of use, and will be moderated prior to posting. NPR reserves the right to use the comments we receive, in whole or in part, and to use the commenter's name and location, in any medium. See also the Terms of Use, Privacy Policy and Community FAQ.