Saturday, December 29, 2012

An Interrogatory

     An interrogatory is a list of questions that is presented to an opponent in a legal case.  The questions are usually part of the discovery process early in a federal or civil proceeding, and must be answered within thirty days.
     Rule 33 of the Federal Rules of Civil Procedures outlines the rules for interrogatories and limits the number of general questions to twenty-five.  Interrogatories are not filed with the court, but consist of formalized communications between lawyers.  Only if the answers are not received within the thirty-day deadline will a lawyer file a motion in court to compel a party to respond.
     I wonder if I can put together an interrogatory for my prosecutors?
     Rule 33, Part (b)(1) states that:  The interrogatories must be answered:  (A) by the party to whom they are directed; or (B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party.  Part (b)(3) says:  Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath. 
     Wouldn't it be great if I could obtain information about my so-called case by using the vehicle of an interrogatory?  I'd ask:  What's going on?  Where did you get your information?  Who do you think I am?
     That part about being "objected to" bothers me.
     It seems that "objections" are the primary means employed by the party being asked questions for avoiding having to answer those questions.  Lawyers are taught ways to avoid answering interrogatories, for example via law journal articles, like "Effective Use of Objections in Responding to Interrogatories," in the Advocate Magazine, and reproduced in the CAALA website.  "Should I object to this question?  What objections are available?" the lawyer readers are coached. "There is almost no risk to stating an objection."
     Objecting to questions does, however, raise suspicions about the litigant having something to hide.  Why, for example, would the prosecutors object to my request, in a court hearing last year, that they open the affidavits used to raid and forfeit my business?  I had every reason to want to know what illegal actions I might have been committing, so I could stop committing them.  This wasn't a good enough reason, the court decided, for me to be given such top-secret information.  But the question remains:  if the prosecutors have evidence proving that I am a federal criminal, why not say so?
     The government's refusal to divulge the nature of my "crimes" and the prosecutors' objection to opening the affidavits are proof that they don't have a case against me.  Prosecutor Corey Smith told Magistrate Judge Jones that he couldn't open the affidavit because he needed to "protect the witnesses" raises the question, protect them from what?  Am I dangerous?  Have I ever given anyone cause to believe that I might pose a risk to witnesses, if I knew who they were?
     And really, come on, do the prosecutors think I don't know who the "witnesses" might be?  Do they think I might have forgotten the names of employees who quit, or Pat McCullough, who bought my medical clinic and promptly reported me to the feds so she'd be first in line for a whistleblower payoff once the inevitable civil lawsuit resulted in a settlement?
     I read through the Rule 33 very carefully, examining it for an opening, something I might be able to use to force the government to unravel its case.  It looked as though it might be helpful, asking the government some pointed questions, like, "What were your reasons for raiding my clinic?" from which might follow, "Were these reasons sufficient to allow the magistrate to issue warrants to raid and forfeit my business and bank accounts?"
     In a pre-indictment context I could go before Judge Jones and say the list of "reasons" in the affidavit are likely to be faulty.  Then, Judge Jones would need to do an in camera assessment in light of what I allege, and decide if I'm entitled to another hearing.  One important question might be:  What's a reasonable time for me to be expected to wait for information about the raid and wreckage of my professional life?
    Then I read Rule 26, "Duty to Disclose; General Provisions Governing Discovery," and found under (a)(1)(B) Proceedings Exempt from Initial Disclosure that one workable objection to answering questions posed by me in an interrogatory forcing the government to show cause for the harm it has done might be, (ii) a forfeiture action in rem arising from a federal statute.  The prosecutors would use this as an objection to my interrogatories, and thereby avoid having to expose their measly suspicions, and the even more measly evidence backing up those measly suspicions.
     In other words, they don't have to disclose their reasons for raiding my office, usurping my bank accounts, and ruining my professional life, as long as they say they're investigating me for violation of a federal statute, and have conducted a forfeiture action against me as a penalty for this violation.
    Therefore, I remain in the dark.  Or, I pretend to remain in the dark.  In fact, I'm shining a spotlight into every nook and corner of my life and businesses, past and present, and there's nothing, nothing at all, that an interrogatory would uncover.  It seems inevitable that the prosecutors, then, would raise objections to questions, in order not to expose nothingness. 

1 comment:

  1. I find the whole notion of a grand jury interesting.

    Prosecutors like grand juries because getting an indictment through a grand jury is easier than having to go through a preliminary hearing where it must be demonstrated to a judge that there is enough evidence to warrant a trial, with the potential defendant and defense attorney present. The preliminary hearing route exposes the prosecutor’s case sooner than they would like. Preferably, grand juries meet behind closed doors in secret without the defendant and defense lawyer present.

    There are several other advantages of allowing a grand jury to decide whether or not charges should be brought against the accused. Grand juries have more jurors then regular juries do, they may have 23 individuals instead of 12, and they all don’t have to agree. Grand juries don’t require a unanimous decision, as does a regular jury. Grand juries must have only a majority vote to indict. Similar to a deposition, witness testimony is transcribed. This prevents witnesses from potentially withdrawing. The prosecutor also can get a feel for how the evidence will be received by jurors in a trial. It is not necessary to present all evidence to the grand jury; just enough to be persuasive will suffice. If the grand jury doesn’t indict on that evidence the prosecutor can return to the same or new grand jury and present additional information.

    From what we know about the prosecutor’s four attempts to persuade a grand jury, we can gather that proceedings aren’t going at all well for the prosecution team. Witness testimony that the prosecutor wanted to keep under wraps is now on transcripts that are piling up and the defense team can obtain those transcripts that potentially reveal the prosecution’s entire hand. We also can gather that less than a majority of the jurors, perhaps none, felt that the evidence is compelling. All prospects of making any deal are off the table.

    I believe that I understand why your attorney thinks it is time for the prosecutor to hand off your case to another agency to pursue a civil suit if so inclined.