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Stranger Than Fiction

Because you find yourself in trouble, you go to see an attorney.
For almost two years you pour your heart out, plot strategy and reveal your most secret fears and schemes. Then you discover that your attorney wore a body bug which transmitted the conversations between the two of you to the secret police. Your attorney gathered evidence against you which he then turned over to the government.

It just so happens that the attorney you picked was himself the target of a government investigation. To save his own skin, he volunteered to set you up.

This assault on fundamental legal ethics was masterminded by the government's prosecutor.

You are mistaken if you think the government in question was Panamanian, South African or Red Chinese. This is a story of American justice.

You are mistaken if you think the prosecutor who orchestrated this rape of the attorney-client privilege was censured by the bar once his conduct was unmasked.

In fact, just the opposite is true. The former prosecutor is being honored by the State Bar of Arizona tomorrow as its featured luncheon speaker.

The celebrated Scott Turow is the ex-prosecutor behind this appalling episode.

In 1987 the U.S. Court of Appeals, Eleventh Circuit, labeled Turow's conduct "reprehensible" and suggested disciplinary action by the Bar in Illinois. This opinion was not part of a court mood that coddled criminals and hamstrung prosecutors. In fact, the Eleventh Circuit slammed the jail cell door shut upon the client whose conversations were taped by his own attorney for the FBI under the direction of Turow. Nonetheless, the court said later "that Turow may have committed an obstruction of justice violation . . . " that merited the attention of the United States Justice Department.

Incredibly, when the enforcement arm of the Illinois Bar and the U.S. Justice Department reviewed the matter, the very best minds of the law could find no wrongdoing.

You, the reader, or you who have hired an attorney might think there is something wrong, something terribly wrong, with a lawyer who tape-records his clients secretly on behalf of a government prosecutor. But you simply do not understand.

Chicago lawyer Scott Turow is a Renaissance man. While others hope for success in any single career, Turow is accomplished both as an attorney and as an author of fiction and nonfiction. Of course, he distinguished himself in school, first at Stanford, later at Harvard. As a student, he penned One L, an account of his first year in law school which is still a hot ticket with those consumed in the "paper chase." In 1987, Turow published the courtroom thriller Presumed Innocent, which was a Dual Main Selection of the Literary Guild. His confident smile radiates from his dust jacket photo, a dead ringer for a modern Edward G. Robinson. This taut, fictional drama became a best seller and will be released as a movie from United Artists.

As a U.S. attorney in Chicago, Turow made a name for himself as a relentless and ruthless government prosecutor who gained further notoriety for his role in the infamous sting directed against judicial corruption, "Operation Greylord." On September 18, 1988, the New York Times Magazine published "Law School v. Reality," Turow's essay on the education of hard knocks that is the practice of "The Law" on the streets as opposed to the academic theory students pick up from professors on their path to a degree.

So you see, men like Turow do not suffer limits or acknowledge boundaries. Theirs, after all, is not common clay. How then do the giants who stride this earth taking large bites out of the landscape deal with the bridle of ethics that restrains mere mortals? This is the story of one such giant, a man the Arizona Bar chose to spotlight in a forum of honor and respect.

In December 1982, Ronald Ofshe was arrested in Miramar, Florida, for possession with intent to distribute four and a half pounds of cocaine. He hired Marvin Glass as co-counsel.

During his representation of Ofshe, attorney Glass learned that Chicago authorities intended to sweep him up in "Operation Greylord" for his role in bribing judges in Illinois. In hope of buying favor, Glass told Turow that he could provide the young prosecutor with a conspiracy to smuggle 2,000 pounds of pot as well as launder drug money. The alleged conspirator was his client, Ronald Ofshe.

Turow, after gaining clearance from his superiors in the U.S. Attorney's Office, wired Glass for his conversations with Ofshe.

Turow explained this mortal breach of the attorney-client relationship with appealing conviction: "I believed--and continue to believe--that neither clients nor lawyers have the right to plan crimes secure from law enforcement efforts."

 

Of course, neither do husbands and wives have the right to plan crimes, so perhaps we ought to forgo appearances by attaching a wire to spouses. And certainly if we bugged confessionals, the conversations between priests and sinners would be revealing.

When asked how the government could be sure it wasn't being used by Glass or how the government could be sure that Glass wasn't setting up Ofshe, Turow responded, "That's why the tape was necessary."

In other words, in order to prove that the attorney-client privilege was worth violating, we had to violate attorney-client privilege.

Turow's self-serving rationalization of the ends justifying the means ignores the very philosophical underpinning of Anglo-Saxon law. But even from a hard-nosed prosecutorial point of view, Turow's actions look foolish. As far as anyone can tell, con man Glass may very well have hustled Turow. According to public record, the authorities uncovered no pot or laundered money and garnered no conviction from this questionable wire. Since the authorities in Florida already had Ofshe dead on the cocaine charge, what did the Chicago prosecutors hope to gain? And what pillar of reliability was Marvin Glass that Scott Turow would willingly, eagerly subvert the justice system?

A Chicago attorney who practiced with him began sputtering at the mere mention of the name Marvin Glass.

"He is one of the most despicable . . . His mother was a werewolf and his father was a devil. He is despicable. He shot his law partner, did you know that? I have dealt with many hoodlums in my career, but nothing like Glass. He cheated clients, he dealt in dope and he was thoroughly incompetent. Please, do not use my name."

In their excellent book on corruption in the Windy City, Greylord--Justice Chicago Style, authors James Tuohy and Rob Warden write: "Glass was a criminal lawyer in the literal sense--a criminal first, a lawyer second."

With a penchant for loud, shiny continental suits, flashy jewelry and gold chains, Glass traveled in a yellow Rolls-Royce. Once he entered his own party atop a rented elephant.

Strong-arm gangster Joseph DeCisco testified in court that he'd been hired to break the legs of Glass' partner Michael Pritzker over a gambling debt. When DeCisco refused, Glass offered hit man Jack Kurant $2,500 to shoot Pritzker, which he did on February 6, 1981, as the hapless Pritzker jogged through the park. The shooting, meant only to wound, not kill, blew off Pritzker's ear.

Under oath, Pritzker testified he said to Glass, "Marvin, you left me lying in the street for dead. You ruined my life. I thought half my head was gone. Every morning when I get up, I'm reminded of it."

This is the Marvin Glass who Scott Turow decided was worthy of his trust.
Turow acknowledged that the government's accomplice in the Ofshe case was dubious: "Marvin was not a letter from home. . . . Glass stopped cooperating. My last act as a prosecutor was [to attend] Marvin Glass' sentencing."

Although Glass was eventually put in jail, it was in a jurisdiction other than Turow's and over charges unrelated to the Ofshe case.

In Presumed Innocent, there is no imbecilic alliance between ambitious prosecutors and gangster lawyers. In his preface to the novel, Turow strikes a steely-eyed pose:

"`I am the prosecutor.
"`I represent the state. I am here to present to you the evidence of a crime. . . . You will deliberate upon it. You will decide if it proves the defendant's guilt.

"`This man'--and here I point.
"You must always point. . . . If you don't have the courage to point . . . you can't expect them to have the courage to convict.

"And so I point. I extend my hand across the courtroom. I hold one finger straight. I seek the defendant's eye. I say:

"`This man has been accused.'
"He turns away. Or blinks. Or shows nothing at all."
Just Scott Turow against the bad guys. That's how it is in the book. No Marvin Glass. No sleazy wiretaps. No reprehensible subversion of the attorney-client privilege. But then Presumed Innocent is fiction.

Not all attorneys in Arizona are excited about the appearance of Scott Turow as an honored guest of the State Bar.

"It concerns me that the Bar Foundation would have an attorney who was involved in such a matter speaking on his perceptions of the strengths and weaknesses of our profession," chided assistant federal public defender Thomas Hoidal in a February 24 letter to the Arizona Bar.

When New Times obtained a copy of his correspondence, Hoidal was quick to explain, in defense of the Arizona Bar, that he'd been informed that it was unaware of Turow's embarrassing record with the Court of Appeals at the time the invitation was extended.

 

However, the Arizona Bar took just the opposite position upon learning that research was underway for a possible article on Turow's appearance.

In a pre-emptive letter sent prior to any inquiries and meant to put the best possible light upon Turow's appearance, Scott Phelps, director of community and media relations, wrote last week that "the State Bar is completely aware of Mr. Turow's difficulties relating to `footnote 6' of United States v. Ofshe. . . . For our part we extended an invitation to him based on his writings rather than his trial work. Specifically, we have asked him to discuss an article he wrote for the New York Times Sunday Magazine regarding the adequacy of law school training as it relates to the real world. . . . "

It is particularly disingenuous for the Bar to claim that Turow was invited here because of the scholarly nature of his essay in the New York Times Magazine, as if the article somehow obscures the ethical considerations of Turow's behavior with the body bug.

For Phelps to assert such a slippery defense and expect to get away with it, he must assume that no one read the New York Times piece or, and perhaps this is more likely, Phelps never read the story.

You see, Turow's entire thrust in the magazine article is a discussion of ethics. Turow specifically cites the Court of Appeals rebuke for his role in the body bug travesty and vigorously defends his own conduct. But having been through his own ethical trial by fire, and having observed and prosecuted fellow attorneys for their ethical bankruptcy, Turow asserts in his New York Times treatise that law school students must be taught more in class about right and wrong.

"There are many individuals to blame for the circumstances that lead a lawyer to bribe a judge, but we begin and end with that lawyer--and that judge," wrote Turow. "And yet, knowing this to be the last act in the drama, would we rather that the players had spent three years practicing their quick-draw with their law professors, or more time immersed in lessons about the complex responsibilities of practice?"

Turow begs the question of just how much classroom study is necessary to understand that it is wrong to offer or accept a bribe. If a law student does not instinctively grasp that payoffs are wrong, is Ethics 101 likely to provide enlightenment? If Scott Turow does not understand that putting a body wire on an attorney in order to bug his client is a perversion of justice, can Turow's call for law schools to offer ethics classes that conform to Turow's value system be anything less than horrifying?

Bar spokesman Phelps is correct when he states that, despite the harsh comments of the Court of Appeals about Turow's conduct, no disciplinary action was taken against the prosecutor. But even this fact is only half of the story.

The protests of Turow and his silk- stocking lawyers in the courts over his initial reprimand drew an even stronger rebuke on the second go-round from the Eleventh Circuit, which called for a review of the bug by the Justice Department.

Legal observers perceived little threat to Turow from either the Illinois Bar or the Justice Department. When reached by phone, Greylord author Rob Warden, who also serves as editor of Chicago Lawyer, pointed out that at that time the Illinois Bar had never moved against a prosecutor for misconduct. And the Justice Department? Deputy U.S. attorney Turow was its employee and Justice was unlikely to embarrass either itself or its attorneys in such a matter.

In the end, the Justice Department issued a ringing endorsement of Scott Turow and his conduct.

When the Court of Appeals went out of its way to chastise Turow in its written opinion, he hired two of the most well-respected and well-connected attorneys in Illinois, Thomas Sullivan, former U.S. Attorney in Chicago and a member of the powerhouse law firm of Jenner and Block, and John Powers Crowley, a former federal district court judge.

The enforcement arm of the Illinois Bar refused to return press calls regarding whether or not it had actually investigated Turow's behavior in the Ofshe case. However, Harriet Turney, chief legal counsel to the Arizona Bar, said she called the same office and was told only that Turow was a member in good standing who had not been publicly disciplined and that anything else that might have transpired--which is not to say that anything did transpire--is a matter of confidentiality. Proving only that whatever concerns Mr. Turow might have about the quality of lawyers' ethical instruction, there is little lacking in the way of education on public relations obfuscation.

 

After reiterating the same points made by Mr. Phelps, the executive director of the Arizona Bar, Bruce Hamilton, said that he saw no problem with having Scott Turow lecture local attorneys on ethics.

Hamilton pointed out that in past years the Arizona Bar had invited Racehorse Haynes and Jerry Spence and that they had "complaints against them as long as your arm."

Just because a court complains about a lawyer's conduct doesn't necessarily mean the attorney has done anything wrong. Such an accusation, said Hamilton, "doesn't convict him, or find him guilty. . . . "

True enough.
Asked specifically if the Illinois Bar conducted a vigorous investigation into the charges against Turow, or whether they were simply swept under the rug as alleged by legal observers in Chicago, Hamilton said, "My memory just isn't all that clear on what happened. . . . Even if it did [find him guilty], I am not sure that would bar him from speaking to a Bar convention."

In fact, Turow pointed out that the Illinois Bar did not deal with the Eleventh Circuit complaint in a cavalier fashion. He said an inquiry panel found "no action was appropriate. . . . I can't read the mind of the Eleventh Circuit, but no one else has agreed with the court."

Phoenix attorneys like criminal defense specialist Bruce Feder might be offended that Turow will lecture the local bar on ethics. "It's like having Oliver North speak to high school students on respect for the law," he explained.

But Hamilton feels that Turow is "a name, a draw, someone people will react to. And we hope your article will sell more tickets."

And what law school class on ethics, Mr. Turow, could overcome such straightforward, bottom-line logic?

"His mother was a werewolf and his father was a devil. He is despicable."

If a law student does not instinctively grasp that payoffs are wrong, is Ethics 101 likely to provide enlightenment?

"It's like having Oliver North speak to high school students on respect for the law."


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