The Lawyer X scandal is a massive blow to the criminal justice system: here's why – The Conversation AU

Imagine you were charged with a serious crime. Then, you found out your lawyer – whether it’s a silk from the top end of town or one from Legal Aid – was only pretending to work for you. Worse, she actually turned out to be helping people who were trying to put you behind bars.

This is what happened in the case of Lawyer X, or informant 3838, who, while representing some high profile criminal defendants, was also registered as a police informant.

The Royal Commission into the scandal – being Victoria Police’s recruitment and management of Lawyer X and people like her – has barely started and already a Royal Commissioner has resigned.

Yesterday it was disclosed informant 3838 was first registered with the police in 1995 – this is ten years before what was understood to be the case when the Royal Commission was established in December, 2018. Before it was believed she was first registered in 2005.

Royal Commissioner Malcolm Hyde’s time in Victoria Police overlapped with the time of Lawyer X’s first time as an informant, which has the potential to be a conflict of interest.

A statement issued by the Victorian government yesterday noted:

The Commission has advised that information willingly disclosed to it by Victoria Police indicates that the informant at the centre of this matter was first registered in 1995 and that there are further informants who held obligations of confidentiality, who may be relevant to the Royal Commission.

The terms of reference will now be expanded so the inquiry can look into more of Lawyer X’s past.

While we don’t know at this stage precisely what Lawyer X did, we know she was a bad lawyer in at least one way: she profoundly betrayed her clients, with the police’s full knowledge.

As far as we know, nothing like this has happened before – anywhere. Nevertheless, it’s easy to predict the consequences for Lawyer X’s clients. Unless she had next to no role in their defence, all the results of any trial where she represented them – including their criminal convictions and any sentence – could likely be cancelled.

That’s because no-one can be convicted or punished for a crime unless there has first been a fair trial. Victoria’s Charter of Human Rights and Responsibilities says:

A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Australia’s High Court has said the same for decades.

Judges expect lawyers before them to put two things first: their client and the courts. They expect lawyers to disclose conflicts of interest and they also expect the government in criminal cases to disclose anything of importance to people being prosecuted.

Lawyers, like anyone else, can sometimes opt to become police informants, but the one thing they cannot do is inform on people they are representing in court. The courts will never tolerate a criminal defendant’s lawyer secretly helping the opposing side in a trial.

That’s why the High Court said late last year that what Lawyer X and the police did “corrupted” the prosecutions of her clients and “debased” the criminal justice system.




Read more:
Victorian royal commission into policing needs to take a broad approach: here’s why


The problem isn’t just the details of whatever secrets she betrayed and what advantages the police and prosecutors received. It’s also whether her role as a police informant so “corrupted” her role as a lawyer that she was never able to carry out her duties to her clients or the courts.

If that’s the case – if people charged with serious offences were not truly defended by their lawyer – then it’s as if Lawyer X’s clients were never tried for their crimes at all.

The best-case scenario is that the clients of Lawyer X will be retried and, perhaps, convicted again.

But then there’s the question of whether future courts will be able or willing to unscramble the Lawyer X omelette – especially more than a decade down the track. It’s easy to give the clients new lawyers, but it’s harder to make the events of the past disappear. Memories will be lost or changed, and the events of the earlier flawed trials will inevitably influence the course and perhaps the result of any later trial.

The worst-case scenario – but a likely one – is that people widely reviled as criminals will (unless they are serving time for other crimes) be released from prison and even be compensated for their time in prison.

The real scandal isn’t that Lawyer X is a bad lawyer, or even that the cops may have done the wrong thing. It’s that the trials that aimed to do justice to defendants, to victims and to society – costly trials, where many people’s lives, freedom, reputation and recovery were at stake – were not fair trials.

Bad and even unfair trials do happen, of course, but what’s different this time is just how unfair these trials were. Lawyer X and the police didn’t just break some rules. They broke a key part of the justice system.

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Read all the emails Jeff Bezos says the National Enquirer sent to 'blackmail' him (AMZN)

Jeff Bezos

  • Amazon CEO Jeff Bezos wrote a blog post on Thursday accusing National Enquirer publisher American Media Inc. (AMI) of trying to extort him over naked photos of him.
  • AMI sent Bezos emails describing the photos it obtained of him and the former news anchor Lauren Sanchez, Bezos said.
  • These are the emails that Bezos said were sent to “blackmail” him.

On Thursday, Amazon CEO Jeff Bezos wrote a Medium blog post revealing the emails that he said were sent to blackmail him.

In the email, American Media Inc. (AMI), the publisher of the National Enquirer, threatened to publish personal photos of Bezos and the former news anchor Lauren Sanchez, including a naked selfie of Bezos, Bezos said.

In January, the National Enquirera longtime ally of President Donald Trump, published an exposé on the affair between Bezos and Sanchez. After that, Bezos hired investigators to look into who leaked his personal photos and texts.

AMI threatened to publish these photos unless Bezos and Gavin de Becker, Bezos’ security boss leading that investigation into the exposé, made a public statement that they “have no knowledge or basis for suggesting that AMI’s coverage was politically motivated or influenced by political forces,” Bezos said. AMI also said it would keep those photos, Bezos said.

“Of course I don’t want personal photos published, but I also won’t participate in their well-known practice of blackmail, political favors, political attacks, and corruption. I prefer to stand up, roll this log over, and see what crawls out,” Bezos wrote.

Here is the email that Bezos said he received from AMI, describing the photos.

From: Howard, Dylan [dhoward@amilink.com] (Chief Content Officer, AMI)

Sent: Tuesday, February 5, 2019 3:33 PM

To: Martin Singer (litigation counsel for Mr. de Becker)

Subject:. Jeff Bezos & Ms. Lauren Sanchez Photos

 

CONFIDENTIAL & NOT FOR DISTRIBIUTION

 

Marty:

 

I am leaving the office for the night. I will be available on my cell — 917 XXX-XXXX.

 

However, in the interests of expediating this situation, and with The Washington Post poised to publish unsubstantiated rumors of The National Enquirer’s initial report, I wanted to describe to you the photos obtained during our newsgathering.

 

In addition to the “below the belt selfie — otherwise colloquially known as a ‘d*ck pick’” — The Enquirer obtained a further nine images. These include:

 

· Mr. Bezos face selfie at what appears to be a business meeting.

 

· Ms. Sanchez response — a photograph of her smoking a cigar in what appears to be a simulated oral sex scene.

 

· A shirtless Mr. Bezos holding his phone in his left hand — while wearing his wedding ring. He’s wearing either tight black cargo pants or shorts — and his semi-erect manhood is penetrating the zipper of said garment.

 

· A full-length body selfie of Mr. Bezos wearing just a pair of tight black boxer-briefs or trunks, with his phone in his left hand — while wearing his wedding ring.

 

· A selfie of Mr. Bezos fully clothed.

 

· A full-length scantily-clad body shot with short trunks.

 

· A naked selfie in a bathroom — while wearing his wedding ring. Mr. Bezos is wearing nothing but a white towel — and the top of his pubic region can be seen.

 

· Ms. Sanchez wearing a plunging red neckline dress revealing her cleavage and a glimpse of her nether region.

 

· Ms. Sanchez wearing a two-piece red bikini with gold detail dress revealing her cleavage.

 

It would give no editor pleasure to send this email. I hope common sense can prevail — and quickly.

 

Dylan.

And here are emails Bezos said he received from the National Enquirer publisher, laying out the terms for withholding publication of the photos:

 

From: Fine, Jon [jfine@amilink.com] (Deputy General Counsel, AMI)

Sent: Wednesday, February 6, 2019 5:57 PM

To: Martin Singer (Mr de Becker’s attorney)

Subject: Re: EXTERNAL* RE: Bezos et al / American Media et al

Marty –

Here are our proposed terms:

1. A full and complete mutual release of all claims that American Media, on the one hand, and Jeff Bezos and Gavin de Becker (the “Bezos Parties”), on the other, may have against each other.

2. A public, mutually-agreed upon acknowledgment from the Bezos Parties, released through a mutually-agreeable news outlet, affirming that they have no knowledge or basis for suggesting that AM’s coverage was politically motivated or influenced by political forces, and an agreement that they will cease referring to such a possibility.

3. AM agrees not to publish, distribute, share, or describe unpublished texts and photos (the “Unpublished Materials”).

4. AM affirms that it undertook no electronic eavesdropping in connection with its reporting and has no knowledge of such conduct.

5. The agreement is completely confidential.

6. In the case of a breach of the agreement by one or more of the Bezos Parties, AM is released from its obligations under the agreement, and may publish the Unpublished Materials.

7. Any other disputes arising out of this agreement shall first be submitted to JAMS mediation in California

Thank you,

Jon

Deputy General Counsel, Media

American Media, LLC

Jon P. Fine

Deputy General Counsel, Media

O: (212) 743–6513 C: (347) 920–6541

jfine@amilink.com

February 5, 2019

Via email:

mdsinger@lavelysinger.com

Martin D. Singer

Laveley & Singer

Re: Jeff Bezos / American Media, LLC, et al.

 

 

Dear Mr. Singer:

I write in response to your February 4, 2019, letter to Dylan Howard, and to address serious concerns we have regarding the continuing defamatory activities of your client and his representatives regarding American Media’s motivations in its recent reporting about your client.

As a primary matter, please be advised that our newsgathering and reporting on matters involving your client, including any use of your client’s “private photographs,” has been, and will continue to be, consistent with applicable laws. As you know, “the fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as criticism, comment, news reporting . . . is not an infringement of copyright.” 17 USC Sec. 107. With millions of Americans having a vested interest in the success of Amazon, of which your client remains founder, chairman, CEO, and president, an exploration of Mr. Bezos’ judgment as reflected by his texts and photos is indeed newsworthy and in the public interest.

Beyond the copyright issues you raise, we also find it necessary to address various unsubstantiated defamatory statements and scurrilous rumors attributed to your client’s representatives in the press suggesting that “strong leads point to political motives”1 in the publication of The National Enquirer story. Indeed, you yourself declared the “politically motivated underpinnings” of our reporting to be “self-evident” in your correspondence on Mr. de Becker’s behalf to Mr. Howard dated January 31, 2019.

Once again, as I advised you in my February 1 response to your January 31 correspondence, American Media emphatically rejects any assertion that its reporting was instigated, dictated or influenced in any manner by external forces, political or otherwise. Simply put, this was and is a news story.

Yet, it is our understanding that your client’s representatives, including the Washington Post, continue to pursue and to disseminate these false and spurious allegations in a manner that is injurious to American Media and its executives.

Accordingly, we hereby demand that you cease and desist such defamatory conduct immediately. Any further dissemination of these false, vicious, speculative and unsubstantiated statements is done at your client’s peril. Absent the immediate cessation of the defamatory conduct, we will have no choice but to pursue all remedies available under applicable law.

As I advised previously, we stand by the legality of our newsgathering and reporting on this matter of public interest and concern. Moreover, American Media is undeterred from continuing its reporting on a story that is unambiguously in the public interest — a position Mr. Bezos clearly appreciates as reflected in Boies Schiller January 9 letter to American Media stating that your client “does not intend to discourage reporting about him” and “supports journalistic efforts.”

That said, if your client agrees to cease and desist such defamatory behavior, we are willing to engage in constructive conversations regarding the texts and photos which we have in our possession. Dylan Howard stands ready to discuss the matter at your convenience.

All other rights, claims, counterclaims and defenses are specifically reserved and not waived.

Sincerely,

SEE ALSO: Amazon CEO Jeff Bezos accuses National Enquirer publisher of ‘extortion’ over naked photos in extraordinary blog post

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