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A Sleeping Lawyer and a Ticket to Death Row

George McFarland is awaiting execution in Texas. But his lawyers didn't mount much of a defense, and the state that leads the way in executions did little to ensure that he was competently represented.

By HENRY WEINSTEIN, © 2000 Los Angeles Times Legal Affairs Writer

     HOUSTON -- When George McFarland was accused of robbing and killing a neighborhood grocery owner, he took the advice of an acquaintance and hired longtime criminal lawyer John E. Benn. That may prove to be a fatal mistake.
     Benn was 72 years old and had not handled a capital murder trial for at least 19 years. Nor did he jump headlong into the new case--he spent four hours preparing for the 1992 trial. Benn did not examine the crime scene, interviewed no witnesses, prepared no motions, did not request that any subpoenas be issued, relied solely on what was in the prosecutor's file, and visited his client only twice.
     During the 17-day trial, Benn's performance took a turn for the worse: He fell asleep.
     "Benn slept during great portions of the witness testimony," juror Mary Louisa Jensen said in an affidavit five years later. "It was so blatant and disgusting that it was the subject of conversation within the jury panel a couple of times."
     Months after the trial ended with a conviction and death sentence, Benn was asked at a court hearing about his snoozing. "I'm 72 years old," he said. "I customarily take a short nap in the afternoon."
     McFarland, now 39, is one of more than 450 people on death row in Texas and one of at least two with a lawyer who dozed off during their trials.
     McFarland's writ of habeas corpus, which challenges the constitutionality of his conviction and sentence, is considered among the most significant pending in Texas because of the profound questions it raises about the quality of legal representation courts deem acceptable for a defendant facing capital punishment.
     Since Texas reinstated the death penalty in 1977, the state has executed 224 people--137 while George W. Bush has been governor--three times as many as the next highest state, Virginia.
     Although lawmakers in some states are questioning the wisdom of the death penalty and public support is declining in opinion polls, Bush maintains that everyone executed in Texas on his watch was guilty and "had full access to the courts."
     In the McFarland case--and another--prosecutors acknowledge that sleeping occurred but say that should not bar the execution. Harris County prosecutors insist McFarland had a fair trial.
     Critics of capital punishment vehemently disagree.
     "For poor people facing the death penalty, this is what it means to be represented by 'the Dream Team,' " said attorney Stephen B. Bright of Atlanta, who specializes in capital appeals as director of the Southern Center for Human Rights.

     A Fateful Choice

     In Texas, where there is no public defender system for capital cases, numerous defendants have been poorly represented by unskilled lawyers, many of whom were appointed by trial judges, said Elisabeth Semel, who heads the American Bar Assn.'s death penalty representation project. Houston judges, in particular, have had a reputation for appointing lawyers who moved cases along rapidly and often had greater loyalty to the jurists than to their clients. Two lawyers, favored by certain judges but widely criticized by leading legal experts, wound up with 10 and 12 clients respectively on death row.
     For that reason, McFarland decided to hire a lawyer on his own. Clearly, he made a poor choice, according to the trial judge in the case, Doug Shaver, who prosecuted 18 murder cases as an attorney and has presided over dozens while on the bench.
     "I knew John Benn. I knew he wasn't competent," Shaver said in a courthouse interview in late June. The judge said Benn had the appearance of "a heavy drinker. . . . His clothes looked like he slept in them. He was very red-faced; he had protruding veins in his nose and watery red eyes. . . . I can't imagine anyone hiring him for a serious case."
     So Shaver appointed a second lawyer, Sandy Melamed, to assist Benn.
     Melamed had never worked on a capital case before and remained deferential, even though he saw Benn's limitations.
     "Because I perceived myself as second chair to Benn, I felt I couldn't take responsibility for preparing the trial strategy," Melamed said years after the trial.
     Like Benn, Melamed never visited the crime scene and he interviewed no witnesses. Moreover, the two never worked as a team. They did not hold strategy sessions and, except in one instance, didn't decide in advance who would cross-examine each prosecution witness. Melamed said that since Benn slept while a number of those witnesses were on the stand, he wound up doing much of the cross-examination himself. According to their own testimony, the two attorneys spent a total of 10 hours preparing for a case in which a man's life was at stake.
     The only division of labor the defense lawyers agreed on before the trial was that Benn would cross-examine the key eyewitness and that he would be in charge of the crucial punishment phase in the event that McFarland was found guilty.
     The transcript shows that in Benn's brief cross-examination of the key witness, he did not ask her about a sharp difference between McFarland's appearance and her initial description of the murderer. The day of the shooting, she told police the suspect was 5 feet 7 to 5 feet 8, weighed 140 to 150 pounds and had medium-brown skin. McFarland is 6 feet 1, weighs about 200 pounds and is very dark-skinned.
     In the punishment phase, where lawyers ordinarily seek to paint a sympathetic portrait of their client in an effort to avoid the death penalty, Benn never arranged for any of McFarland's out-of-state relatives--including his mother and his sisters--to testify on his behalf. Moreover, Benn failed to take up the offer of a lawyer who had previously represented McFarland, and served as best man at his wedding, to testify as a character witness.
     Melamed said he did the best he could in a difficult situation. Indeed, Melamed wound up handling most of the jury selection--even though he had never before undertaken the sort of detailed questioning required in a capital case. And he handled virtually the entire punishment phase--something he had not prepared for because Benn had said he would do it.
     McFarland's current lawyers are seeking a new trial through a writ of habeas corpus--the historic method of overturning an unconstitutional conviction. Raising a bevy of issues, the new lawyers say that a death sentence should not be allowed to stand when it was the result of a complete breakdown in the adversarial process.
     "Defense lawyers are not baby-sitters; they are charged with an ethical, moral and legal responsibility to assist their clients by testing the prosecution's theories and evidence," McFarland's current lawyers, Walter E. "Rusty" Herman III and R. Paul Wickes, contend in a brief pending in a Houston trial court. "The death penalty should not be used to punish an accused for the incompetence of his lawyers."
     Melamed laments his role in the trial and staunchly maintains that McFarland should not have received a death sentence. "If someone says down the line that I screwed the case up and George should live, I will be the second-happiest guy in the world behind George."
     Benn, now retired, responded, "No, I never heard of the bum," when asked if he remembered McFarland in a brief interview at his home in a pleasant Houston neighborhood. Asked if he recalled sleeping during the trial, Benn retorted, "I've seen judges asleep on the bench."
     Benn's son, Markham Benn, said his father, now 80, is in "the early stages of Alzheimer's disease. He doesn't remember anything."
     McFarland's current lawyers filed their brief more than three years ago. Eric Kugler of the Harris County district attorney's office said he expects to file the reply brief in late July or August.
     Then a Harris County trial judge will advise the Texas Court of Criminal Appeals whether McFarland is entitled to a new trial. If McFarland does not prevail in state courts, his attorneys would file a federal writ challenging the constitutionality of his conviction and sentence. No execution date has been set.
     Some of the contentions raised by McFarland's current attorneys were vigorously challenged by prosecutors during an initial appeal. The state's Court of Criminal Appeals, which rarely reverses death sentences, upheld the verdict and sentence 7-2 in 1996.
     The court majority said, among other things, that it did not matter that McFarland's attorneys had not gone to the crime scene, interviewed witnesses or conferred with one another. The court did not challenge the contention that Benn slept during the trial but said McFarland's appellate lawyer provided no detailed evidence of how often it happened. The majority said that if Benn had been McFarland's only attorney "we might be inclined" to find that he was denied counsel.
     But the appeals court said that whatever Benn's shortcomings, McFarland's appellate lawyer failed to show that Melamed's work was inadequate. "Although we do not condone Benn's behavior, viewing the totality of circumstances, appellant fails to make any showing that he was not effectively represented at trial by Melamed."
     At an earlier hearing seeking a new trial, Melamed testified, among other things, that he had hoped the jury might take sympathy on McFarland because of Benn's "naps." That prompted the appeals court to opine that "Melamed's decision to allow Benn to sleep" could be viewed "as a strategic move on his part."
     Not exactly, Melamed said in a recent interview. He attempted, for a while, to serve as a baby-sitter to Benn in an effort to keep his co-counsel awake. But Melamed said he eventually abandoned the effort because he could not keep an eye on Benn and concentrate on testimony at the same time.
     McFarland's problems with attorneys did not end when the trial concluded. During the initial appeal, McFarland was represented by Marcelyn Curry, an inexperienced, state-appointed lawyer doing her first capital appeal and plagued by severe health problems, including anemia, hepatitis A and B, and dizzy spells, all of which caused her to be frequently bedridden. Curry missed three deadlines for filing the appeal and was threatened with contempt.
     She admitted in a court affidavit that her papers were "incomplete." Indeed, the Texas Court of Criminal Appeals cited more than half a dozen inadequacies in her brief, but still upheld the verdict.
     Charles Baird, then a Texas Court of Criminal Appeals judge, issued a sharp dissent, saying McFarland was entitled to a new trial. "I find the majority's suggestion that it was somehow reasonable trial strategy for [McFarland's] lead counsel to take a 'short nap' during the trial utterly ridiculous," Baird wrote.
     "The possibility of jury sympathy can never be a reasonable alternative to effective representation," continued Baird, who was later voted off the bench in an election that focused on his death penalty opinions. "A sleeping counsel is unprepared to present evidence, to cross-examine witnesses, and to present any coordinated effort to evaluate evidence and present a defense. In my view, a sleeping attorney is no attorney at all."
     Given the lack of communication between the two defense attorneys and the fact that Melamed did little trial preparation, his presence "did not excuse or rehabilitate Benn's incompetent representation," Baird wrote.

     'I'm No Angel'

     McFarland, who grew up in the Bronx, has been in trouble with the law for more than two decades.
     He came to Texas to join the Job Corps as a troubled teenager in 1978 and was later convicted of armed robbery and two misdemeanor thefts. At the time of his murder indictment, he also was facing charges on another robbery--in which he allegedly brandished an Uzi--and on separate gun possession charges.
     "I'm no angel," McFarland readily volunteered in an interview at the prison where death row inmates are housed in Livingston, 70 miles north of here.
     Regardless, McFarland insists that he did not kill grocer Kenneth Kwan and that his trial was a mockery of what the American legal system is supposed to provide.
     "There are no words to express the pain, the anger, the frustration," McFarland declared through a telephone while seated in a bulletproof-glass-enclosed interview cubicle.
     McFarland said he was shocked during jury selection to see Benn slumbering and confronted him. He said the attorney replied that he was just listening with his eyes closed and he was capable of making choices based on the prospective jurors' written answers to a questionnaire.
     McFarland said that he periodically tried to awaken Benn by kicking his chair. "When you have a juror looking and your lawyer is sleeping, you're boiling over but you don't want to look too agitated because of what people will think."
     Melamed said the courtroom bailiff, David Hernandez, also kicked Benn's chair and tried to nudge him awake, but eventually stopped.
     "I expected John Benn to get up there and not only question their lead eyewitness but challenge every single person who had something to say against me. He just let it go by," McFarland lamented.
     Capital cases often drag on for years and frequently involve complicated issues. But McFarland's current lawyers say there is nothing subtle about his situation.
     "This is not a case about the arcane niceties of death penalty law and procedure," the lawyers contend in their brief seeking a new trial. "There is no physical evidence connecting McFarland with the murder of Kenneth Kwan in November of 1991. . . . No murder weapon. No fingerprints. No forensic evidence of any kind. The state's case was based on a dubious and uncorroborated identification of McFarland during a police lineup that was conducted outside the presence of McFarland's counsel, in direct contravention of the 6th Amendment right to counsel."
     During the prison interview, McFarland said he has chatted with Calvin J. Burdine, the second death row inmate currently seeking a new trial because his now-deceased lawyer, Joe Frank Cannon, slept through parts of his murder trial.
     McFarland said that he also knew Carl Johnson, who was executed in 1995 after federal courts said he could not even litigate the issue of Cannon sleeping at his murder trial because the point had not been raised early enough in the appellate process.
     "He thought that issue would save him," McFarland said ruefully.
     Last year, a federal trial judge in Houston ruled that Burdine was entitled to a new trial because Cannon slept through significant portions of his 1987 trial. "A sleeping counsel is equivalent to no counsel at all," wrote Judge David Hittner, an appointee of President Reagan.
     The Texas attorney general's office has appealed, maintaining that the state is still entitled to execute Burdine. The state says that Burdine has failed to demonstrate that Cannon's performance actually harmed his client.
     Regardless of how a federal appellate court in New Orleans rules, the Burdine case could go to the U.S. Supreme Court, which has never directly decided whether a criminal defendant is entitled to a retrial if his attorney slept through key portions of a trial.
     In American jurisprudence, the issue is hardly open and shut.
     At one point during McFarland's trial--which lasted five days, including sentencing, following 12 days of jury selection--Houston Chronicle courthouse reporter John Makeig asked Judge Shaver about Benn repeatedly falling asleep.
     "The Constitution says everyone's entitled to the lawyer of their choice, and Mr. Benn was their choice. The Constitution doesn't say the lawyer has to be awake," Shaver responded.

     A $27,000 Robbery

     The murder that put McFarland on death row occurred on Friday, Nov. 15, 1991, a cloudy but warm day in Houston.
     The morning began like most for Kenneth and Shirley Kwan. They left home to open the C&Y Food Center, which they had run for 17 years in Houston's low-income Trinity Gardens neighborhood.
     On Fridays, a lot of people cashed checks at the modest store, just across the road from a small waste management company and a Baptist church. So Mr. Kwan and security guard James L. Powell went to the bank in Kwan's van and picked up $27,000 in cash. Powell carried a shotgun.
     When they returned to the grocery, Kwan, carrying the money, got out on the driver's side. A man carrying a large plastic bag rose from where he was sitting outside a laundermat next door to the market. He hurried by Kwan, headed toward Powell. Kwan hastened his pace toward the store.
     The man pulled out a handgun, put it to Powell's head, and told him, "Drop the gun. Drop the gun. If you don't I'll blow your goddamned brains out." Powell said he complied but heard two shots fired at Kwan from behind him.
     Nine months later, during McFarland's trial, Powell was asked if he saw the man who had held the plastic bag seated in the courtroom. "No, I don't," he responded.
     Carolyn Bartie, a regular C&Y customer who had come to buy stamps, turned out to be the key trial witness. She was sitting in her car when Kwan and Powell pulled up.
     Bartie said that the man who had been carrying the plastic bag fired at Kwan and then directed another man, wearing a ski mask, to enter the store and get the moneybag Kwan was holding.
     As Kwan lay dying inside the store, the two perpetrators ran toward a waiting car with the money and sped off.
     Soon thereafter, the police recovered a stolen 1986 Chevrolet Suburban several blocks away that they believed had been used in the robbery. No fingerprints were recovered from the vehicle, and the gun was not found in it.
     That day, Bartie told detectives that everything happened so fast she did not think that she could identify the man with the plastic bag and the handgun, according to police reports.
     But a month later, Bartie, a data entry operator for the Houston Police Department, tentatively identified McFarland as that man from a Police Department photo spread of six individuals. She subsequently picked him out at a lineup and identified him at trial.
     During his brief cross-examination, Benn asked Bartie how she had been able to identify McFarland more than a month after she told police she couldn't. She responded that she simply had been "scared" at the time.
     But Benn neglected to ask Bartie anything about the major discrepancies between McFarland's appearance and her initial description of the gunman. Nor did the defense attorneys point out the discrepancies in size and skin shade during their closing arguments.
     The other key witness at the trial was McFarland's 20-year-old nephew, Craig A. Burks. Three days after the murder, Burks called the Houston "Crime Stoppers" line and told police he had information on the case. He also testified at a grand jury several months before the trial.
     The night of the murder, Burks testified at trial, McFarland, driving a new car and carrying a wad of bills, told him and Burks' uncle, Walter Burks, that he had participated in a robbery at the store. At one point in the testimony, Craig Burks said McFarland told him he "shot the dude, the Chinese guy." But when the prosecutor asked if McFarland told him why he fired, Burks contradicted himself, saying McFarland told him that it was another man, Albert Harris, who shot Kwan.
     Melamed attempted to shake Burks on cross-examination by repeatedly asking him about the fact that "Crime Stoppers" had paid him $900 for the tip. He also pressed Burks about the fact that he was offered a reduced sentence on an aggravated robbery in return for his testimony. Burks insisted that he was telling the truth.
     Melamed did not question Burks on his contradictory statements about who fired the gun--which repeated the same contradiction he had made in his grand jury testimony.
     Moreover, Melamed did not ask Craig Burks about something that McFarland's new lawyers say may be even more important: Walter Burks had told the grand jury that McFarland had not said he participated in the robbery-murder.
     Police never charged Harris, or another man, Michael J. Clark, who Craig Burks testified was the chief planner of the robbery. Clark was the acquaintance who recommended Benn to McFarland, according to several attorneys in Houston.
     The defense called no witnesses and the jury deliberated only 80 minutes before convicting McFarland.
     In the punishment phase, prosecutors called 20 witnesses over a 3 1/2-hour period in an effort to show that McFarland, if allowed to live, posed a continuing threat to society.
     Only three witnesses were called by McFarland's attorneys, and they were on the stand for all of 15 minutes.
     A foreman at a paper factory where McFarland was employed for three years said he was a good, reliable worker. A guard in the jail where McFarland was housed for six months awaiting trial said he had not gotten into any trouble during that period. And McFarland's wife, Patricia, told the jury that her husband had always tried to take care of her and their two sons, George Jr., 6, and Gregory, 4, both of whom were in the courtroom.
     There was no testimony from any relatives about McFarland's early life, such as the fact his father left the family. Nor was there any psychiatric testimony about anything that might have contributed to his becoming a criminal--rudimentary things that experienced, competent defense lawyers normally do in such a case.
     Melamed offered little more in his closing argument than a summary of his three witnesses and a plea for mercy. In contrast, prosecutors Kate Dolan and Ned Morris took one of the principal weaknesses in their case and turned it into an asset, saying that a lack of fingerprints showed how clever McFarland was. They also told the jury that there was no doubt that McFarland represented a future danger to society, even in prison. And Morris emphasized that at a time "when his life is on the line," McFarland's lawyers offered little mitigating testimony.
     Juror Jensen found this particularly troubling.
     "I kept waiting for the defense to put on some evidence that would provide me with a reason not to vote on the special issues in a way that the death penalty would result," Jensen said in an affidavit submitted as part of McFarland's writ of habeas corpus.
     "The original vote was 9-3 for the death penalty," she said. But "the defense never did present any meaningful evidence and because of what the prosecutor presented I felt I had no choice but to vote for the death penalty."
     Attorney Richard Frankoff, who met McFarland in 1984 and represented him in two robbery cases, said he still is pained at the fact that McFarland's attorneys did not call on him to present mitigation testimony.
     "Although McFarland has had troubles with the law, I have developed a genuine affection for the man," said Frankoff, who was just elected president of the Harris County Criminal Lawyers Assn. "He struck me as a loving husband and father."
     Frankoff also submitted an affidavit saying that after McFarland was arrested on a 1984 robbery charge, he was inadvertently released by the authorities and came to Frankoff's office. "He wanted to turn himself back in." Frankoff arranged for McFarland to return to jail. Eventually, McFarland pleaded guilty and was sentenced to a six-month term.
     The day of his sentencing, McFarland and his longtime girlfriend Patricia Burks were married in the judge's chambers with Frankoff serving as best man.
     "I believe his life is capable of being redeemed. A jury should have heard that during the punishment phase," Frankoff said.

     A Better Legal Team

     Through pure serendipity, McFarland now has far stronger legal representation.
     After his conviction was upheld by the Texas Court of Criminal Appeals in 1996, McFarland wrote a letter to his cousin Ronald Collier, a New York engineer, asking him to help find a new lawyer to file a constitutional challenge.
     Collier, who had been close to McFarland since they were youths in the Bronx, called George Kendall at the NAACP Legal Defense and Educational Fund in New York.
     Besides handling a heavy caseload himself, Kendall frequently recruits lawyers from large firms to take on the cumbersome task of preparing habeas corpus writs, which require not only sophisticated legal work but also an independent investigation of the facts and the trial record.
     Conscientious lawyers often spend hundreds of hours on such cases.
     Kendall asked legal defense fund board member Daniel L. Rabinowitz to help in the search. Rabinowitz solicited his friend and former partner, R. Paul Wickes of New York's venerable Shearman & Sterling, one of the nation's largest law firms with more than 800 attorneys, and a roster of blue chip clients including Citicorp and Morgan Stanley. Wickes, a veteran corporate lawyer who in the late 1970s had served as chief of staff to Vermont's Republican Gov. Richard Snelling, agreed to review a synopsis of the case.
     "I threw it in my briefcase and I took it home for the weekend with a lot of other work," Wickes said in a recent interview.
     What happened in McFarland's case troubled Wickes. But he said another factor cemented his decision to represent McFarland.
     That weekend in early 1997, Wickes said, he read a New Yorker article entitled "Tinkering with Death" by U.S. 9th Circuit Court of Appeals Judge Alex Kozinski, whose chambers are in Pasadena. In the article, Kozinski, who supports capital punishment, offered a highly personal view of what it is like to have a man's life in his hands, including recollections of how he awoke several times one night wondering if an execution had been carried out.
     Several statements in the article troubled Wickes. First off, Kozinski wrote that "death cases are meticulously litigated, first in state court and then in federal court." Kozinski also accused "liberal colleagues" on the 9th Circuit of tacitly acting in concert with lawyers engaging in manipulation to get executions postponed.
     "I was sitting there and I am a big, fancy New York lawyer and it's been a long time since anyone has called me a liberal," Wickes said, "but I think death is different."
     McFarland also has another lawyer now because in recent years Texas has begun appointing attorneys to handle the state habeas corpus proceeding for people convicted of capital murder. McFarland's local counsel is Walter E. "Rusty" Herman III, of Humble, Texas, a well-regarded criminal defense lawyer and former federal prosecutor.
     In addition, McFarland now has the assistance of two Houston private investigators retained by Shearman & Sterling. Wickes said the firm, which is working for free, has incurred "hundreds of thousands" of dollars in expenses.
     In contrast, Shaver allotted only $600 for an investigator. Melamed said he was paid about $15,000. It is not clear how much Benn was paid. McFarland wouldn't say and Benn does not remember.
     For McFarland to win a new trial, he must overcome strong legal presumption, based on a U.S. Supreme Court ruling, that his lawyers were competent under prevailing professional standards and that the outcome of the original trial was reliable.
     Since the high court has set such a difficult standard, there are numerous instances in which dubious performances by an attorney have nonetheless been deemed acceptable. Indeed, in the Burdine case, lawyers for the state of Texas have reminded a federal appeals court that there have been instances in which appellate judges have not overturned verdicts of trials in which attorneys were drunk, had psychotic reactions or admitted they were "totally unprepared."
     On the other hand, without defining the parameters, the Supreme Court in another 1984 case said there are some instances where a lawyer's performance has been so bad that it is inherently prejudicial to the defendant's case.
     The high court has not ruled directly on the issue of sleeping lawyers. But at least two federal appeals courts have held that if a lawyer sleeps through significant portions of a case, such conduct is inherently prejudicial.
     In the most recent case, in 1996, a federal appeals court in New York awarded a new trial to a man convicted at a drug trial where his lawyer was frequently asleep. "Effectiveness of counsel depends in part on the ability to confer with the client during trial on a continuous basis, and the attorney must be 'present and attentive' in order to make adequate cross-examination--a matter of constitutional importance by virtue of the 6th Amendment," the appellate judges wrote.

     The Pain Continues

     McFarland's case could continue in the courts for several more years. Meanwhile, Shirley Kwan and her children continue to suffer from the loss of husband and father.
     She sold the C&Y market and is now living in suburban Houston with the youngest of her three children. The other two are in college. "It's hard," says Kwan.
     In fact, she says, it's very hard. "It will stay with me all my life. Nothing can change that."
     Judge Shaver, for his part, said he wishes that he had done two things differently during the trial: given the defense more than the $600 he allotted for the investigator and appointed a lawyer to assist Benn who actually had experience in death penalty cases.
     "It would have looked better if there was a lawyer with more death penalty experience," Shaver volunteered, even though he said that he had seen worse defense teams in a capital trial.
     "It's not always what it is," said the judge, who is semiretired. "It's how it appears."
     McFarland spends 23 hours a day in a 6-by-10-foot cell, passing time reading romance novels and listening to a religious radio station because "you feel like you have company in the cell."
     McFarland says he has "a little more hope" now because of his new lawyers. But he does not predict that he will be freed any time soon. "When I look at Doug Shaver and the judges from the Court of Criminal Appeals and the governor of Texas, no one seems to uphold the law, no one seems to represent the Constitution."
     While McFarland was speaking, during a prison media day in June, reporters from various other news organizations were interviewing four other death row inmates nearby. Three have since been executed. 

E-Mail Retriever Didn't Get the Message

Associated Press, Washington Post Saturday, July 15, 2000; Page A22

An independent auditor hired to review the retrieval of White House e-mails told a federal judge yesterday that he was never told of the judge's order to produce the messages promptly.

The testimony from Gregory Ekberg came at the end of a lengthy pretrial hearing in a civil lawsuit against the White House. Ekberg, of Vistronix Inc., a McLean information technology company, said he had never heard of U.S. District Judge Royce C. Lamberth's order, filed last April, to produce the e-mails as soon as possible.

At the time, the White House said it hoped to have a system in place by June.

Ekberg testified earlier yesterday that new and reliable equipment, approved by the FBI on Thursday, is helping the White House reassemble thousands of missing and once-thought irretrievable e-mails sought in a lawsuit against the Clinton administration.

He and another White House computer specialist said a searchable database of the e-mails could be delivered to the judge in four to six weeks.

But under direct questioning from Lamberth, Ekberg said he was never told of any orders to produce the e-mails promptly.

The judge seemed incredulous when Ekberg, whose job is to review the entire project on an ongoing basis, said the judge's order had never been discussed. Ekberg said the only deadline he was given required the e-mails to be copied by the end of 2000, and that came from a subcontractor hired by the White House, he said.

Ekberg's exchange with the judge took place after several hours on the witness stand, during which he said workers struggled with three computer systems that either failed to copy the e-mails from master tapes or couldn't produce exact copies, as required in the case.

He said a fourth system, approved Thursday by the FBI, is now in use.

White House officials earlier this year said thousands of e-mails, including some from Vice President Gore's office, were not properly archived and were lost because of a computer glitch.

As a result, the messages were never reviewed by White House lawyers to determine if they should be turned over to investigators under subpoena in cases ranging from the Monica S. Lewinsky scandal and Whitewater to campaign fundraising.

Lamberth is holding the hearings to determine how to get the messages to investigators. Testimony was expected to continue Monday.

© 2000 The Washington Post Company

July 24/31, 2000

Where's Hoffa Driving the Teamsters?

by MARC COOPER ©  The Nation

See below for background and related information.

There was a time when the very word "Teamsters" evoked some pretty dark images: a bloated and notoriously corrupt union president, carried into the Teamsters convention on a gilded sedan chair by men dressed as gladiators; another mob-tied president disappearing to God-knows-where; millions in pension-fund dollars being used to build Vegas casinos and hotels; hired thugs roaming the California grape fields, beating up UFW strikers and signing sweetheart deals with the growers.

But that was then. This is now: Teamsters and turtles together, confronting corporate globalization in Seattle; Teamsters helping to lead the human rights fight against permanent normal trade relations with China and putting 5,000 members on the Capitol steps during the week of the A16 demos to prove they mean it; Teamsters, along with auto workers, refusing to join the rest of labor in an early endorsement of Al Gore and instead conducting an intricate minuet with Green presidential candidate Ralph Nader. The Teamsters, in short, making a bid to become key partners and allies in that progressive blue/green coalition that began to gel out of the gaseous clouds of the WTO protests.

Without question, the roots of this transformation of America's largest industrial union, with 1.4 million members, can be traced to an overall reactivation of labor, as well as to the Teamsters' own internal reform administrations of the past decade and, of course, to federal intervention and semi-tutelage of the union that began in 1989 as part of a massive cleanup campaign. But the transformation also shows the effect of 59-year-old James P. Hoffa, general president of the Teamsters for the past year. Some predicted an unmitigated disaster when Hoffa was elected: After all, "Junior," as Hoffa was disparagingly called by his critics, was the son of tainted Jimmy Sr.--the fabled Teamsters boss who was immortalized on the screen by Jack Nicholson and whose body, after his kidnapping, has never been found. So when Jimmy Jr. ran against reformist-backed incumbent Ron Carey, he was seen strictly as the preferred candidate of the Teamsters "barons," the comfy bureaucrats reviled by reformers.

To many, the choice at the time seemed stark and simple: Either Carey and continued reform or "Junior" Hoffa and a return to the Bad Old Days. But Carey, after becoming ensnared in a money-laundering scheme in which $750,000 in union funds washed through some Democratic-linked advocacy groups and then back into his union campaign coffers, was removed from the Teamsters presidency by a federal oversight panel and disqualified from standing for re-election. (Carey claimed he didn't know of the scheme; he was never indicted or legally sanctioned.) Hoffa's fundraising practices were also investigated; although he was fined, the violations were not deemed sufficient to disqualify him. He overcame a hastily staged campaign by reform-slate candidate Tom Leedham and won the 1998 election, formally taking office in March 1999.

In the year since then, by anyone's measure the world hasn't collapsed. "The moral in this story is that life goes on," quips Elaine Bernard, a progressive labor-studies expert at Harvard. She adds, "It's still too early to make any definitive judgment on Hoffa." But given the sort of hostility that his name evoked on the left, and given the predictions of a royalist restoration should Hoffa actually be elected, even that kind of equivocal evaluation must come as music to Hoffa's ears.

Meanwhile, numerous progressive activists, politicians and campaigners wax downright effusive. "Working with Jimmy Hoffa has been an experience of seeing someone open up--and care about the details," says Lori Wallach, director of Global Trade Watch. "He has won our respect and admiration and has become an important ally in the fight against globalization." Progressive Representative Dennis Kucinich agrees. "I've stood with Jimmy maybe a half-dozen times now, and he's always ready to do the right thing, always ready to go out front personally, and that's important," Kucinich says. "His support for human rights and workers' rights and his outreach to others to make new coalitions is crucial." Says fellow progressive Representative Bernie Sanders, "I'm always delighted to work side by side with Jimmy Hoffa." And reliably pro-labor Congressman John Conyers, whose father was a UAW representative and who has worked closely with the Teamsters for years in their shared Detroit-area base, says, "I sense an improvement in the Teamsters. I'm getting good vibes from them. Jimmy is a talented young man capable of making a big mark in the labor movement."

Hoffa's Teamsters, of course, hardly hold a monopoly on taking progressive stands on trade and globalization. Other labor leaders like George Becker of the Steelworkers have been quicker to understand the importance of coalition-building on these issues as well as the relationship between workers' rights in the United States and such things as the need for debt relief abroad. And moves like Hoffa's decision to invite Pat Buchanan to the DC rally against the China trade bill leave some progressive activists cold. But the fact is that in his first year on the job, Hoffa has surprised many by showing himself to be a potentially powerful and reliable ally--rather than a roadblock--in the fight for a progressive national politics.

Inside Politics: Whose Union?

Inside the Teamsters union itself, opinion on Hoffa is, naturally, much more divided. And it's there, ultimately, that he will prove his critics right or wrong. Among his successes to date: Flight attendants at Northwest Airlines recently ratified a new contract with a 68 percent approval vote. Hoffa's leadership also won a ruling forcing UPS to make good on its promise to create 10,000 new jobs. Under direct Teamsters pressure, the Clinton Administration has kept Mexican trucks from doing business inside the United States, despite a NAFTA provision to the contrary. Moreover, some former Carey allies, like Randy Cammack of the powerful Local 63 in Southern California, have come on board.

Other former Carey allies, however, keep their distance. In fact, many of those turtle-friendly Teamsters in last year's anti-WTO protests were affiliated with Seattle Local 174, whose secretary-treasurer, Bob Hasegawa, remains a Hoffa critic. "I haven't seen as much real leadership as I have seen slick politicking," says Hasegawa, the first Asian-American to run for International VP when he stood with Tom Leedham against Hoffa. And for its part, Teamsters for a Democratic Union, the two-decades-old reform caucus that counts about 10,000 members nationally, remains implacably opposed. At the heart of the TDU opposition is a concern that Hoffa is jettisoning the model of intensive membership mobilization and community outreach that produced the resoundingly successful UPS strike in 1997. But there is a personal element as well.

"Ask me what Hoffa's like? He's mostly nothing. He's a boring golfer. A boring lawyer," says TDU leader Ken Paff. (Unlike his father, who left school at age 14 and was running his first strike three years later, Hoffa Jr. had a comfortable middle-class childhood, graduated from the University of Michigan Law School, took an unsuccessful run at state office--as a liberal Democrat--and built a labor career not as a frontline organizer but as an office-anchored lawyer.) "He's a yuppie," snorts Paff. "Even the power barons who put him in office laugh at him. They don't respect him." Leedham, who was endorsed by TDU in his 1998 race against Hoffa on the Rank and File Power slate, argues that Hoffa is dismantling recent gains. "What's going on inside the union isn't good," he says. "We are weaker. The new posture is to talk tough but to settle short. The only thing Hoffa does well is PR."

Critics of Hoffa point to what they call inadequate contracts in the settlements with Northwest Airlines and Anheuser-Busch. And they are livid over a messy strike last year at an IBP meatpacking plant in Wallula, Washington. When IBP management imposed a speedup during contract talks, angry workers spontaneously walked off the job. A few days later a formal strike vote was passed. "That strike lasted six weeks, and the Teamsters Local was basically absent during the whole affair," says TDU activist David Levin, who spent a lot of time working on the strike. As Levin recalls it, "Another TDU activist, Maria Martinez, was elected as chief shop steward and basically led the strike. After a settlement was reached with the company, Martinez was set to run--and perhaps win--the presidency of the Local. Boom. Hoffa placed the Local in trusteeship. He locked in the do-nothing leadership and headed off Maria's election. Next, she was removed as chief steward." A court ruling, however, recently restored Martinez to her position. And now rank-and-filers are in court trying to lift the imposed trusteeship.

"It's just not true that we trusteed that Local for political reasons," says Hoffa spokesman Brett Caldwell. "The strike had emptied the Local treasury. It couldn't operate any longer on its own and asked the International to come in and bail it out. That's all that happened." Caldwell's rationale for taking over the Local seems thin. But while an unwarranted "trusteeship" should never be shrugged off, such actions unfortunately happen every day in the labor movement. The real question is whether what happened with this Local will remain an isolated incident or become standard practice for the Hoffa administration.

Jawing With Jimmy

Inside the Washington, DC, headquarters of the International Brotherhood of Teamsters--the so-called "Marble Palace"--Jimmy Hoffa's physical bulk and outsize personality seem to fill his cavernous paneled and carpeted office. Above his massive desk hangs an oil painting of his father, who, after assuming the presidency in 1957, spent fourteen turbulent years building the Teamsters into the most powerful union in the country--and one of the dirtiest.

Hoffa's son may be criticized for how he's running the union, but no one can deny the zeal and energy with which he has assumed his new role or the inspiration he derives from the notion of building a union every bit as powerful as his father's--a union, he argues, that was divided against itself during the Carey period. "It's just amazing what's happening in this union today," he says during a wide-ranging interview. "It's now united like never before. Everyone knows we are now working toward a common goal." And that goal, says Hoffa, is not only to win better contracts and better conditions for Teamsters members but also to position the union as a sort of motor force for an alternative political coalition. "I would say I'm a progressive populist," Hoffa says, adding, "We want to be on the cutting edge of the important issues of the twenty-first century."

It's this willingness to go out front on certain issues that wins Hoffa his highest kudos from admirers. "Ron Carey was an inspiration but he just didn't have what it took personally or politically," says Linda Kaboolian, a longtime researcher on Teamsters affairs and a professor at Harvard's Kennedy School of Government. "There's just too much evidence that Carey lacked serious follow-through." Hoffa's current political director, Chuck Harple, who served as Carey's legislative representative, says that whereas "Carey would just not let us build these sorts of coalitions," Hoffa "comes in and says, 'Let's work with everyone we can.'"

This notion of coalition politics seems to be Hoffa's favorite topic. "I think we're onto something here, expanding our influence," he says. "We want to keep the union strong, to keep the AFL-CIO strong, and by reaching out to environmentalists, to the religious community, we're even stronger." He adds, "We can lobby on Capitol Hill and then transfer that power to more street demonstrations, to running candidates for office, to running people for Congress. We can get the endorsements of all the labor people in labor-intensive states; maybe we can even run a candidate for President."

But to accomplish any of that, Hoffa says, he's going to have to stay in office beyond his current term (federal overseers are letting him serve out the last part of Carey's tenure). "I have to run again next year," says Hoffa. "So let me make an announcement right here. I'm announcing it officially. I'm running again next year."

Coverup or Cleanup?

At the beginning of this year Hoffa's Teamsters implemented the Respect, Integrity, Strength and Ethics program, known by its acronym RISE. Hoffa describes RISE as the "logical successor" to the consent decree that the union entered into with the government more than a decade ago. In other words, Hoffa wants RISE to be a self-policing, anticorruption unit successful enough that the US Attorney in Manhattan will agree to end federal oversight of the union.

Edwin Stier, a former federal prosecutor who served for eleven years as the court-appointed trustee of notorious Local 560 in New Jersey and who heads RISE, says, "So long as the government is still in, there is a cloud over the union, a stigma. Tell someone you're a Teamster and they look at you strangely. It will be a tremendous psychological lift when the intervention is lifted." A board of advisers appointed by Stier that will review the work of RISE includes the law professor who is the author of the RICO statute (the 1970 antiracketeering law that has been used against many corrupt union leaders), a former Labor Department inspector general and the former FBI agent who supervised the investigation into the disappearance of the senior Hoffa.

Some observers see Hoffa's desire to get rid of the federal oversight as natural, considering that the union has spent $82 million over ten years on the program and has been forced to accept the government as co-governor. Others, however, see it as the first step in something redolent of a grand conspiracy: If the Feds are pulled out, Hoffa will begin building a personal empire and bring back the mob. Speaking for those in the middle is a reform-minded labor lawyer who represents a Midwestern Teamsters Local. "Eventually the Feds have to get out of the union," he says. "But not yet. Hoffa is turning out better than some people thought because the internal culture of the Teamsters has changed so much. He has to deal with a totally different internal world than his father did. The Teamsters, fortunately, can never go back to where they were. But we should be in no hurry to end the oversight."

TDU's Paff openly scoffs at RISE and at Stier. "Ed Stier? As far as I can tell, he's a guy who talks a lot," Paff says. Another TDU official writes Stier off as "in the bag for Hoffa." In contrast, Herman Benson of the Association for Union Democracy--hardly a Hoffa stronghold--says, "As overseer of Local 560, Ed Stier did a great job, really great." Still, he cautions, "but there he was armed with the full power of the courts and had the FBI behind him. What power will he have now?"

How much power is a good question. Stier's staff at RISE hardly comes off as a claque of Hoffa-picked toadies, as his critics charge. An organized-crime study of the union now under way is supervised by a former top FBI investigator of the New York Mafia, and working with him are a dozen other former FBI racketeering experts. Separate from the crime study, a task force comprising twenty-two Teamsters is developing a code of conduct and an enforcement mechanism. One of the non-Hoffa-aligned members of the task force, Wayne Fernicola of New Jersey Local 177, says, "I was the staunchest anti-Hoffa person in New Jersey. My Local went 86 percent for Leedham against him. But working with Ed Stier and RISE has turned my head around. I don't know a more honest man than Ed Stier. And I like the changes I'm seeing around the Teamsters."

The RISE critics point to a recently circulated draft code of ethics that would allow the continuation of multiple salaries and other perks that have been anathema to reformers. But Stier says what has been published is only a draft and that certain issues--like multiple salaries--are internal constitutional questions that cannot be expunged by fiat.

Even TDU's one champion on the RISE task force, Ron Teninty, disagrees with those who shrug off the anticorruption drive. While uncomfortable in some ways with the composition of the force, he says, "I have no questions about the integrity of the RISE process; the people are honest, and there is no pre-cooked conspiracy to stage a dog-and-pony show." As to the draft code of ethics, Teninty says it doesn't go nearly as far as he would like. "But it's going to be good, it's going to be beneficial, it's going to educate the members about their rights. And it's going to create an internal tribunal process that will be about as neutral and apolitical as one could make it."

Professor Kaboolian, who has sat in on most of the RISE task force meetings, says, "There's a lot of challenging and questioning that goes on in those meetings, and the people not identified with Hoffa are much more influential than TDU's characterization of them." Why, then, such unremitting hostility toward RISE from groups like TDU, who should be the most committed to serious cleanup efforts? "I think some of TDU's agenda is strictly political," is Stier's answer. And it's a plausible one. With Teamsters elections barely a year off, it's not only Hoffa who is politicking but also his opposition, one bent on denying him any credit.

The first acid test for the new machinery created by RISE will be its still unproven willingness to take on Hoffa allies directly. That chance may be coming soon. Recently, the federal oversight board that monitors the Teamsters recommended that Larry Brennan, a close Hoffa mentor, be charged with breach of fiduciary duties.

Playing With Pat, Nuzzling Nader

Before his election, there was speculation that Hoffa could emerge as a pole around which labor conservatives would rally in opposition to AFL-CIO president John Sweeney. But the fault lines that have appeared inside the federation are not so much left/right as they are industrial sector/service sector--with the former taking the hardest line against Clinton Administration trade policy (Sweeney is a former head of the largest service union in the country).

That's why the Teamsters and the UAW were the two major holdouts at last October's AFL-CIO convention, refusing to join the early endorsement of Al Gore. If anything, Hoffa's influence inside the federation seems to be causing Sweeney to take ever-clearer stands on issues of globalization. And Sweeney has seemingly gone out of his way to appease Hoffa and keep him as a top ally--a neat trick, given the enmity between Hoffa and Sweeney's top lieutenant, federation secretary-treasurer Richard Trumka. Trumka was closely involved in Carey's muddied election campaign and still might be facing legal jeopardy for his role. There was even some speculation that Hoffa might help the Feds out if they bring a case against Trumka, but till now, Hoffa has kept mum on that possibility.

In a clear peace offering, Sweeney gave the Teamsters $500,000 in federation backing to support their ongoing strike against the Overnite Transportation Company. "Hoffa puts the fucking fear of God into Sweeney," says a close labor observer. "Hoffa's got 1.4 million per caps. If he takes a walk, it's shit city for the AFL. And Hoffa's no wussy. He doesn't care about rocking the boat. He actually enjoys it."

If that's the case, then Hoffa has been immersed in fun since late May, when the House of Representatives--including a full third of the Democratic caucus--defied organized labor and voted to approve permanent normal trade relations with China. As that vote came down, the enigmatic leader of the UAW, Stephen Yokish, issued an angry statement alleging betrayal by the Democrats and Al Gore and openly suggesting that his union might wind up supporting Ralph Nader.

Hoffa, who has forged a close personal alliance with Yokish, made it a duet when on June 22 he invited Nader to address his general executive board. After the meeting, Hoffa heaped verbal bouquets on Nader and called for him and Reform Party candidate Pat Buchanan to be allowed into the official presidential debates. Hoffa, who earlier had played a round of political footsie with Pitchfork Pat when he invited Buchanan to the trade-bill rally in Washington, also partially allayed some progressive concerns when he said that Nader was much closer to labor's overall positions than Buchanan. Hoffa political director Harple says it's absurd to think that his boss was ever considering a Buchanan endorsement. "When Jim became president he said he wanted to open the union to people who do not support labor to see if there were other common areas, like trade," says Harple. "That doesn't mean we are going to endorse them for President."

Whatever one thinks of the wisdom of abandoning or supporting Gore, a continued withholding of support for the Democratic nominee by the Teamsters and the UAW would mark a giant step forward from what is mostly the lip service labor currently pays to the notion of building an independent politics. Harple says that from now on Democrats "are not going to get [our support] as easily as they once did." And just as the Democrats are gearing up to win back the House, Hoffa is exacting his revenge by beginning to cut off cash to a number of Democrats who voted against labor on the China vote. The Teamsters have revoked their endorsement and financial support of Representative Lois Capps of Santa Barbara, California, and Michael Case, a California Democratic challenger. The union has also cut off funding for Kansas Democrat Dennis Moore, who is locked in a tight re-election race, as well as for Democrats Diana DeGette of Colorado and Tom Sawyer of Ohio. "I believe in accountability," says Harple.

One thing that is disconcerting, however, is the recent decision of the Michigan Teamsters, seconded by the International, to endorse conservative GOP Representative Pete Hoekstra. Hoekstra has a staunch antilabor record, but apparently what's more important to the Teamsters is that he sits on the Congressional committee overseeing union activities. (Then again, the Hoffa-led Teamsters may simply be returning a favor: It was Hoekstra who enthusiastically took up Hoffa's cries of fraud and led the Congressional investigation into Carey's campaign finances.)

White Hats, Black Hats--and Shades of Gray

Hoffa's ultimate success or failure will be determined not by his stands on presidential candidates or on trade--no matter how unconventional or militant--but rather by his ability to deliver better contracts, higher wages, bigger pensions and new members to his union. His current big gamble is the strike that broke out last October against freight giant Overnite--a unit of the powerful Union Pacific Corporation. The union predicted a quick surrender by the company, but the battle is becoming a grinding, protracted fight to the finish that is bleeding the union at the rate of several hundred thousand dollars per month in strike benefits.

A decisive and clear-cut victory would vindicate Hoffa's style of leadership and give him a boost going into next year's re-election campaign. So far his approach to the conflict has been much more in the tradition of his father's Great Man style--his most dramatic move was to challenge an Overnite executive to a one-on-one debate, a bid that proved unsuccessful--than in the social movement/mobilization mode. In solidarity with an ongoing strike, most internal criticism of the Overnite struggle is muted. Spero Rockas, the principal officer of Seattle Local 741, much of whose membership is involved in the strike, says, "The International has been great, supporting us 100 percent." But a number of other Teamsters leaders on the West Coast expressed dissatisfaction over the lagging level of grassroots mobilization. "What strike?" asked another Washington State Teamster.

Exactly what might emerge from this strike is a clearer notion of what Hoffa's union model will be. Will he show that he has discarded the sort of intense member involvement and social-movement organizing that made Ron Carey's leadership of the 1997 UPS strike so electrifying to the rest of the labor movement? Will he win a big victory relying on his father's personalized model of leadership: the fist on the table, the hearty handshake, the skillful brokering of power? Or will Hoffa be able to find some middle ground, one that melds his personal, charismatic style with the grassroots energy and membership mobilizing power of the sort that TDU has brought so effectively to bear over the past twenty years? And will he show that he believes in a union that allows for an active and respected internal opposition?v

Harvard's Linda Kaboolian thinks that much of the internal culture of the Teamsters is so resistant to change that only what she calls "an incrementalist" like Hoffa who doesn't frighten the encrusted bureaucracy, as opposed to a "revolutionary" like Ron Carey, can actually move the union forward. "You can't move this union along and stay completely out of the old power centers," Kaboolian says. "Carey tried it and failed. Now it's Hoffa's turn. Don't look for white hats and black hats in this movie, because there aren't any. Look for who can get the job done."

Marc Cooper, a Nation contributing editor, is the host of RadioNation.  

Background and Related Information

The website for the International Brotherhood of Teamsters, one of the largest labor unions in the world, containing press releases, information on Teamster history and current campaigns and union resources.

Teamsters for a Democratic Union

TDU is the grassroots movement working to reform the Teamsters, created out of the merger of the Professional Drivers Council (PROD) and TDU in 1980. The site contains information on the 2001 IBT Election, commentary on breaking Teamster news and information on meetings.

Association for Union Democracy

The Association for Union Democracy is the only national pro-labor nonprofit organization dedicated solely to advancing the principles and practices of democratic trade unionism in the North American labor movement. This site features information on legal rights, current AUD Projects and other relevant resources.

Labor Net

LaborNet is a communication network for a democratic, independent labor movement, with the first regular labor news webpage in the United States. LaborNet's founders say "the new communication technology must be put to use to revitalize and rebuild the labor movement."

SWEAT Labor Magazine

SWEAT Labor Magazine is an online source of independent labor news and opinion created by volunteer union activists throughout North America. This site provides news, opinion and debate on the labor movement.


LabourStart provides a plethora of up-to-date labor-related news stories. The site is a service provided by Labour and Society International for the international trade union movement.


The American Federation of Labor-Congress of Industrial Organizations is a body of American unions, formed in 1955, and representing more than 13 million workers nationwide. This site contains resources and information about the AFL-CIO and its constituent unions, as well as news for working families.


The UAW is one of the largest and most diverse unions in North America, with members in virtually every sector of the economy. This site contains information on consumer products made by UAW members, UAW history and breaking news, and an action report.

Global Trade Watch

The Global Trade Watch, a division of Ralph Nader's Public Citizen, promotes government and corporate accountability in international trade agreements and organizes around issues relating to globalization.


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