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Former Federal Judge And Prosecutor Stephen Larson On What Rick Perry Should Do Next

Tuesday, August 19, 2014  |  posted by Duane Patterson

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HH: Today, there are two major stories – what is going on in Ferguson, and I’ve got my eye on that, and we’re going to talk about the National Guard’s role throughout the day, and what happened on Friday night as I left the studio, Governor Rick Perry, a friend of the show, a friend of mine, indicted. And as I went reading through this weekend, I thought to myself I know one guy who can help us on this. It helps sometimes to be a lawyer in a law firm with really extraordinary litigators, one of whom is a former federal district court judge. And Judge Stephen Larson joins me now. He’s a partner at the Arent Fox law firm of which I am a partner. But even before he was a judge on the federal bench, he was the chief of the Organized Crimes section of the United States Attorney’s Office in Los Angeles. So he’s a prosecutor, a judge, and now he runs complex litigation. Judge Larson, welcome to the Hugh Hewitt Show. How are you?

SL: I’m well. Thank you so much, Hugh.

HH: I appreciate you joining me, because I am confused by this. I am confused how a grand jury can bring an indictment against a governor for issuing a veto. How do you read this situation?

SL: Well, the confusion is not so much in my mind how a grand jury could return an indictment, because in the hands of the right or a wrong prosecutor, a grand jury could return an indictment against just about anybody. The concern is why a prosecutor would seek an indictment under these circumstances.

HH: Have you ever seen anything like it, remotely like it?

SL: Well, unfortunately, Hugh, we’ve seen a lot of criminalization of politics going on across the country, and increasingly, and in particularly in a number of states, where we have really seen a polarization of politics. We are seeing the legal system being used and abused in this way.

HH: Now you go back to your days in the U.S. Attorney’s Office when you’re the head of the Organized Crime section, and I know you represent defendants now in federal court, and in state court against charges, but back when you were a prosecutor, wouldn’t someone put up their hand among the professional…I’ve known a lot of prosecutors. They’re highly respected, very ethical people. Wouldn’t you have expected someone in Texas to say wait a minute, I’m not going to be a part of this charade?

SL: Certainly, you’d expect that. And you know, the system, particularly the grand jury system, and both the federal and the state system, relies on prosecutors who are willing to do just that. It’s such a powerful position to be a prosecutor, and you really need to have prosecutors who understand the power of the grand jury.

HH: Now if you were his defense counsel, and I want to make sure everyone understands you’re not, but if you had a high-profile political person indicted in what is obviously a political hit, how would you advise him to respond? My advice on Friday was that he should pardon himself and laugh at these people, but that didn’t go over too well. And then I suggested he should have a press conference and just play the videocam from the police car of the D.A. who’s orchestrated this, and he didn’t do that, either. But what’s your, because indictments are serious things. I mean, they’re life-ruining in essence.

SL: Well, that’s what’s so scary about this, is that once the indictment has taken place, the criminal justice system, the process, kicks in. And there is no easy way out. It’s the matter of, the next step will take place, there will be hearings, there will be pre-trail motions. There will be opportunities to challenge the validity of the indictment, but all of that will take time. And as we all know, our justice system does not really operate at a fast speed. And so that’s why the only outlet that could reach the community quickly is the media. It’s radio stations like yourself, which the Governor has clearly embarked on, on somewhat of an aggressive media campaign. And I think that’s really the only defense he has right now, because the legal system really takes a long time to catch up.

HH: Well now, you’ve been on both sides, both as prosecutor and defense counsel, and you’ve sat on the bench. You know the perils of waging a campaign through the media as well, don’t you?

SL: The media has become a central focus of both the prosecution and the defense, and in particular in these highly-publicized political cases.

HH: Okay, so would you typically advise a client to get out there and answer all questions? Or would you, would the defense counsel in you say let’s wait and see how this develops?

SL: Well, the general rule is to wait and see. You advise your client to say as little as possible, because everything that your client says can be used to prosecute him. We all know that.

HH: Yeah.

SL: And that’s dangerous. At the same time, Governor Perry’s in a very unique and very difficult position, because he’s the sitting governor of a state, he has to command his authority, he has to maintain his political posture, and so there is the political advice and there’s the legal advice. and sometimes, they’re at odds.

HH: Is there any way, Judge Larson, for him to avoid getting booked? And you know what I mean, the whole fingerprinting and the mug shot. An indictment is usually followed by an arrest and bail. Is there any way to avoid that charade for a sitting governor of 14 years with the stature of Rick Perry?

SL: I hate to sound cynical, Hugh, but I suspect, and I’m sad to say this, that that was what this was all about, was going through that process. And I don’t know how he avoids it.

HH: Now is there any kind of motion you can bring, and by the way, I also want to ask you about the federal side of this. If in fact these state prosecutors have acted in order to politically embarrass him, have they opened themselves up to civil liability by Governor Perry?

SL: Well, potentially down the road. Let me answer your first question first, though. There’s really, the courts are reluctant to get involved in the arrest process itself. That is strictly an executive function. That is something that he police will follow out – the booking process, the arrest process. That is not something that the courts are necessarily going to get involved in. And as far as any kind of vindication for him, malicious prosecution or a civil rights claim, that is going to have to await the completion of the criminal process. Generally, the law does not allow any kind of intervention by the courts into the propriety of the prosecution until long after it has been brought, at least in terms of a civil rights claim or a claim for a malicious prosecution.

HH: So if you had been sitting back in your federal judge days out in the Central District of California, and some backwoods prosecutor who was a right winger cracked up an indictment of Governor Jerry Brown, and the Governor brought this to your federal jurisdiction as an abuse of his rights as an elected official, do you think your hands would be tied?

SL: Hands would be largely tied.

HH: Wow.

SL: At least at that stage. As long as the criminal process is proceeding, federal courts will defer to the state criminal courts until the criminal matter has been resolved one way or the other.

HH: Wow, this is just so unfair. And I guess California doesn’t, I’m not a criminal lawyer. You’re the guy who does white collar defense. We don’t have anything like this, do we, where a grand jury can pop out with an indictment of a governor?

SL: Well, a grand jury could indict anybody.

HH: This is amazing. You see, I should know more about this than I do, but I don’t practice in this area. Have you seen egregious prosecutorial misconduct when you were on the bench?

SL: I never had occasion to dismiss a case based on prosecutorial misconduct. Generally, the prosecutors that appeared before me I found to be of the highest integrity, to be really, really good guys and gals who really did the right thing, or tried to do the right thing. And I would say the same, too, about the defense bar that appeared before me. Generally, the rules is, and we need to be really careful here, Hugh, most prosecutors in this country are good people.

HH: Right.

SL: Men and women of integrity doing the right thing. The problem is all it takes is one or two in an office, particularly that rise to the highest levels of the office, particularly in a politically-charged office, to do the wrong thing and wreak havoc on a system. But by and large, my experience has been that prosecutors are really, really good people trying to do the right thing.

HH: You know, at my time at the Department of Justice, and yours, was marked by extraordinary public career servants. I was a political appointee. You were career. And they did do the right things. And so I’m surprised by this. If they had second thoughts, would it be better for the career of the special prosecutor down there who’s carrying the water for this disgraced D.A., would it be better for him to throw up his hands and say my mistake, or for him to push on, because I don’t think, I don’t think he judged this right at all, and I’ll bet you the media reaction, even David Axelrod came out and condemned this today. Even MSNBC has been condemning this today.

SL: Well listen, prosecutors are human, too. Prosecutors make mistakes. When I was a prosecutor, I made mistakes. What marks a prosecutor of integrity is the very person who will say this was a mistake, we have to stop this prosecution, we have to stop it now. There is no shame in that. To me, that shows greatness. That shows moral integrity. And that’s exactly what needs to happen. Whenever a prosecutor gets to that point in a case, whether it’s at the beginning, the middle or the end, where they believe that there is something wrong with that case, that’s exactly what we need.

HH: You know, that would be, I guess we should hope for that. I think his name is McCrum. And honestly, that would be the best result at this point, if he were to understand that overreach had happened, and he’d gotten carried away, because you can get carried away, right?

SL: Of course. Listen, again, we’re all human, and I suspect there was a tremendous amount of political pressure involved in this entire circumstance here, and I would hope that once one sits back and considers what has happened here, that you’d reach the conclusion that might be different than the initial decision.

HH: What about his pardoning himself? What do you think of that idea?

SL: I’m sorry?

HH: I suggested his pardon himself. Do you think that’s a good idea?

SL: Well, I don’t know if that would, how that would play either in the political or legal field.

HH: Okay, Judge Stephen Larson, my colleague at Arent Fox, thanks for joining me on short notice.

End of interview.

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