>>>DOUG MUZZIO: Hello I'm
Doug Muzzio this is City Talk.
On March 10, 2011
lobbyist Richard Lipsky
was charged in a two count
bribery and money
laundering complaint by
U.S. attorney Preet Bharara.
Lipsky and seven
others including New York
State Senator Carl Kruger
pled not guilty to the charges.
But eight months
later Lipsky pled guilty
to some of those charges.
He served ninety days in
federal prison and spent
two years on probation and
that ended on February
24th of this year.
♪ [Theme Music] ♪
>>>DOUG MUZZIO: Today
Richard Lipsky is here to
talk about his case, about
corruption in Albany and
what he and others see as
the corruption of the
American criminal justice
system itself,
specifically the unchecked
power of prosecutors and
the perversion of the
grand jury.
Richard,
before his arrest, was a
lobbyist, a self-styled
fighter for the underdog,
who according to The New
York Times quote was
omnipresent in press rooms
at city hall and the state
capitol.
A wiry man with a
gray mustache, bags under
his eyes, and a Bluetooth
headset that seemed to
have been permanently
lodged in his ear.
Endlessly pushing,
prodding and pitching
stories.
Currently Richard
is working with the
National Association of
Criminal Defense Lawyers.
Joining Richard, and me,
is Gerald Lefcourt, noted
criminal and civil defense
attorney, who represented
Richard in this criminal
case.
In his forty years
practicing law his clients
have included Abbie
Hoffman, Black Panther
Party leaders, real estate
mogul Harry Helmsley,
actor Russell Crowe, New
York state assembly
speaker Mel Miller and on
and on.
Mr. Lefcourt
served over twenty years
as speaker of the New York
state assemblies designee
to the commission on
judicial nomination.
He
has served as chair of the
criminal Advocacy
Committee of the City Bar
Association and has been
recognized in New York
magazines survey of
outstanding practitioners.
God I'm just stopping with
you.
Welcome Richard.
Welcome Gerry.
OK.
You
plead guilty in January of 2012,
two weeks before you
were to go on trial on the
charges brought by Bharara
and at that point you said
to the judge, I acknowledge
that my actions were in
violation of the law and
I knew they crossed the line.
You accepted responsibility
for your conduct and talked
to your incredibly poor
judgment.
What were you
guilty of and what were you
saying you were guilty of?
>>>RICHARD LIPSKY: Well
Doug, I think that the
important thing, the way I
look at it I think it's
important to try to point
out is that it's very
difficult sometimes when
you're dealing in politics
to know where the bright lines
are.
Where is behavior that's
acceptable and where isn't.
My behavior I believe crossed
over that line because I wasn't
paying attention enough to
what I should be doing because
I hadn't been somebody who
had been close to an elected
official, my entire career
had been oppositional.
>>>DOUG MUZZIO: I well
remember.
>>>RICHARD LIPSKY: And I
told you when I first met
Gerry, that horrible
period after I had gotten
arrested and I told him,
you know, I got out of my
comfort zone.
And I got
close to an elected
official who really was
someone you shouldn't have
gotten, I should have
gotten close to.
The way I
phrased it was I willingly
boarded a southbound
express but got railroaded
at the same time.
>>>DOUG MUZZIO: You were
always good with the
metaphors.
So the original
charge has you serving up
to, according to the
criminal complaint, twenty
years in prison, three
years of supervised
release, two hundred fifty
thousand or twice the
picayuneary gain and loss,
and one hundred dollars
special assessment on one
of the counts and then
this five hundred thousand
in the second one and then
you get ninety days?
How
do you go from twenty
years and then in the sum
of the pre-sentencing it
looked like the sentencing
guidelines were somewhere
between five and six.
But
then you get ninety days.
How do you get ninety
days?
>>>RICHARD LIPSKY: Well I
think that-
>>>DOUG MUZZIO: And how
does he get it for you?
>>>RICHARD LIPSKY: I'll
turn it to Gerry after,
you know I think Doug, the
way, if you get from
twenty years to ninety
days the essence of that
is that they got so much
wrong in the initial
complaint.
The problem is
in the federal system they
can go into a grand jury
and they can pile on all
kinds of information, much
of which could be false
and in my case turned out
to be false.
And then after
eight months, after I was
arrested, they came to a
different conclusion and they
came to Gerry, the
U.S. attorneys came to
Gerry, and offered him,
on my behalf, a deal which
they said according to what
Gerry told me, that they said
we don't believe Richard belongs
in prison.
We want to help
try to get him probation.
>>>DOUG MUZZIO: How do you
react to that?
Just set
the scene, they call you,
you go talk, what is the story?
>>>GERALD LEFCOURT: You
know prosecutors in the
context of a public
corruption case, every act
must be corrupt.
There
must be a deal going on.
Why did he do that with
him?
He must be getting
something you know this is
one of these weird cases
where the prosecutors
learned as we got closer
to trial that they had so
much wrong that actually
Carl Kruger and Richard
Lipski saw eye to eye on
big box stores, on
collecting cigarettes taxes-
>>>DOUG MUZZIO: So the
bribery count you're
saying really held no
water.
>>>GERALD LEFCOURT: It
really was a different
world that they came to
understand but they could
never admit that they'd
made terrible mistakes by
bringing the charges
against Richard that they
brought.
So they say let's
avoid a trial, let's you
and I sit down and work
out something where he
doesn't have to do what
Carl Kruger was doing,
which was eight years.
Kruger was sentenced to
eight right years right
and if he's the one who's
supposedly bribing them
you'd think he'd be worse.
>>>DOUG MUZZIO: That's why
I'm looking at twenty.
>>>GERALD LEFCOURT: But
they understood that
it really wasn't.
>>>DOUG MUZZIO: So they
actually, at least, implicitly
or explicitly they came to
the conclusion that in
a sense they had, in some
sense, blown the case in terms
of the nature of the charge.
Now
just prior to the sentencing
I guess the U.S. attorney's
office sends a three page
letter asking for leniency and
the sentence before
Judge Rackoff and the statement
of the U.S. attorney was
that you had provided
significant information
that led to investigation and
prosecution of numerous other
persons.
And I'm trying
to figure out what I missed with
the prosecution of
numerous another persons.
>>>GERALD LEFCOURT: Well
you know what,
I'm surprised to hear those
words.
I'm surprised to
hear those words because
what actually occurred was
is that Richard became a
consultant to the U.S.
attorney to make them
understand how politics
really works and you know
don't look at this as bad,
look at this as bad but
there was no specific
individuals or cases that
grew out of his
consultation with the
United States attorneys.
>>>DOUG MUZZIO: So being
the cynic from Brooklyn
that I am what this is, is
a cover by the U.S.
attorneys saying we didn't
blow this, no, I mean
Richard really gave us
stuff that facilitated the
investigation and it's the
cover story.
Am I off on this?
>>>GERALD LEFCOURT: No,
you're not off.
That's what they were trying to
convey to the public.
It wasn't true.
What was true
was Richard became a
consultant to make them
understand the way things work.
There is no case that grew
out of whatever Richard said
to them.
He never testified
as a witness against anybody.
>>>DOUG MUZZIO: Yeah, I
was searching, I couldn't
find any and I figured I
would ask you.
>>>GERALD LEFCOURT: You
know what, it was valuable
cooperation because for
them to understand the
system better-
>>>DOUG MUZZIO: Well
excuse me, contextualize
and Richard-
>>>RICHARD LIPSKY: It was
a seminar basically in
Politics 101.
I went back
to the future Doug.
>>>DOUG MUZZIO: In fact I
mean I was one of the
people who wrote a letter
on your behalf to the
judge describing my
professional relationship,
which was just you know an
acquaintance but wise and
witty, edge and really
some erudition on this,
>>>GERALD LEFCOURT: And
Richard always represented
the little guys in the
system and that's why he
was always on the outside
and finally he meets a
state senator who agrees
with him on a lot of the
clientele that he has,
that there shouldn't be
big box stores that
destroy all the little guy.
And so they had a relationship
that quite frankly he never
had with any other
politician and it looked bad.
>>>DOUG MUZZIO: And excuse
me, and it was bad.
>>>RICHARD LIPSKY: Listen,
I'm the first one to admit that-
>>>DOUG MUZZIO: I know.
You already plead.
>>>RICHARD LIPSKY: I'm the
first one to admit that
and you know sometimes you
make mistakes and in this
system mistakes can be
criminalized and that's
the problem.
The laws are
so expansive and the way
in which U.S. attorneys
look at the political
system with such a jaundiced
eye, they can pick and choose
who they want to target.
And
there are enough vague statutes
and enough powers
that they have-
>>>GERALD LEFCOURT: The
grand jury does not need
competent evidence,
federal grand juries,
the Supreme Court has decided
they could hear hearsay.
They could here illegally
obtained evidence and
nobody ever sees what goes
on in a federal grand jury.
>>>DOUG MUZZIO: Explain,
go a little bit more.
There's no judge, no defense,
nobody sees nothing just keep
going and then Richard
talk about where you are when
they were actually
in the grand jury room.
>>>GERALD LEFCOURT: Well
first of all we don't know
that they're presenting a
case and we don't know
what kind of case it is,
we don't know that it's
hearsay, we don't know
what the basis is and the
federal judge, you know,
the federal prosecutors
present to the grand
jurors a draft of an
indictment that they write
and they have agents go in
there and testify from
hearsay and blah, blah, blah.
>>>DOUG MUZZIO: Wait a
second-
>>>GERALD LEFCOURT: And
there it is.
>>>DOUG MUZZIO: I read the
whole thing I mean you know to
this non lawyer was a little bit
excuse me but there's all this
stuff and it looks
like, man this is the real deal.
>>>GERALD LEFCOURT: It's
what I call the tyranny of
small decisions by the
Supreme Court.
Nobody could look behind an
indictment and no judge,
no federal judge, has the
power to look behind the
indictment.
If what went
on was criminal in the
grand jury, if there was a
trial that led to the
conviction nobody could
ever look back at it and
it's different in states,
in many state grand
jurors.
In New York he
would have had the right
to testify, he would have
the right to present
evidence that was
exculpatory-
>>>DOUG MUZZIO: Would he
have the right to an attorney?
>>>GERALD LEFCOURT: He
would have a right to
counsel in the grand jury.
>>>DOUG MUZZIO: Wow.
In the
grand jury, excuse me,
I don't- this seems to make
sense.
Why is it at the federal
level that you have
this massive exclusion and this
absolute immunity, what's
the historical- I mean is
there a legitimate
historical root?
>>>GERALD LEFCOURT: No.
The A.B.A., the American
Bar Association, the
National Association of
Criminal Defense Lawyers,
many other advocacy groups
have been urging Congress
to implement basic
fairness in the federal
grand jury so that people
could have the right to
present their case because
once you're indicted in
this society it's over.
It never leaves.
It never
gets off your record-
>>>DOUG MUZZIO: That's
crazy I mean the other day
when the Menendez
indictment came on and what,
the next day the New
York Times comes out and
says you've got to resign.
I mean did they read the
case?
I mean there seems
to be far less of a
presumption of innocence
and don't get me wrong,
I understand that you know
there is sort of this
miasmic culture of
corruption-
>>>RICHARD LIPSKY: It's
also that the popular view
of politics is so you know
so jaundiced.
People hate
politicians, they hate
lobbyists, and that was
one of the things in my
case while we were going
towards a possible trial
you know the thought of
going to trial as a
lobbyist with all of the
stigma that is associated
with it and what
prosecutors often do is
use your category of who
you are to convict you in
the eyes of the jury and
that's what they did when
Preet Bharara did his
press conference.
While I
was in a holding cell in
the federal building
unable to even know what
was going on he was
presenting his case and I
think I should point out
that one of my co-defendants,
the developer Aaron Malinsky,
was actually led off with
I think it was a non-prosecution
agreement and the letter
from the U.S. attorney said
after a thorough investigation.
So eight months after the guy
was arrested they did a
thorough investigation.
>>>DOUG MUZZIO: C'mon.
Justice may be slow Richard.
>>>RICHARD LIPSKY: But of
course they kick Malinsky out of
the Brooklyn Navy Yard where he
had a thirty million dollar
project and his whole career
was destroyed by that as well.
>>>DOUG MUZZIO: Right.
Talking
about your point about the
language in the complaint the
U.S. attorney says quote,
it reflected a broad based
racket reflecting an
unholy alliance of politicians,
bad word, lobbyist, bad word,
and businessmen, for
a lot of people a bad word,
so I mean and this U.S.
attorney and I presume others
as well if you read their
complaints it's like every
sentences the headline of
a media piece.
There's a very politically
savvy element to this.
>>>GERALD LEFCOURT: This
is talking prosecution
when they indict the
indictment it's filled
with verbiage that is
press worthy that is the
goal.
There used to be the
notion that you file a
charge and you make it as
simple as possible and
there's no big grandiose
press conferences-
>>>DOUG MUZZIO: It's the
celebrity culture I don't know.
Well also I think it's you
know it's political ambition in
some sense there's a
lot of things going on.
>>>GERALD LEFCOURT:
Obviously this political
ambition with Preet
Bharara is exactly who
knows maybe he's going to
run for governor.
>>>DOUG MUZZIO: Oh no.
See
I shouldn't associate with
people like you.
>>>GERALD LEFCOURT: But
what's annoying is what it
does to the atmosphere in
trying to get a trial.
I mean in political
corruption or public
corruption it is so,
trying to select a jury,
you should hear what that
jurors say.
I mean they
are just mortified by
politics because all they
hear is this kind of stuff
from prosecutors.
>>>DOUG MUZZIO: Sure.
And
news media I mean it's an echo.
>>>RICHARD LIPSKY: The
other piece it gets to
what your point about
prosecutors.
People look
at prosecutors as if they
have been beamed in from
some other planet to be
these white knights,
these avenging angels, not
understanding that they
are politicians.
That they
are political appointees.
That they are part and
parcel of the overall
government that the people
have such disdain for but-
>>>DOUG MUZZIO: My
governor as a matter of face.
>>>RICHARD LIPSKY: Well
the law in order ethos,
you know that and I say
law and order you know
from the television show
Law & Order, Sam Waterston
is the great example of
you know the prosecutor
was only interested in the
pursuit of justice and
most people are socialized
to that concept.
>>>DOUG MUZZIO: The media is
very powerful in
projecting those.
>>>RICHARD LIPSKY: And yet
those examples of not only
mistakes, and maybe in my
case overreach,
but egregious errors of
withholding evidence and
things like that.
>>>GERALD LEFCOURT: All
you have to do is think of
a case like the Republican
senator from way up-
>>>RICHARD LIPSKY: Ted
Stevens.
>>>GERALD LEFCOURT: Ted
Stevens.
You know here's a
guy who trying to get
reelected demanded a
speedy trial and then-
>>>DOUG MUZZIO: They bring
the indictments just
before the election.
>>>GERALD LEFCOURT: And he
had some great lawyers in
Washington and they found
all this evidence that was
withheld and it led to one
of the most incredible
investigations of the
Justice Department.
>>>DOUG MUZZIO: I read
that five hundred eighty
three investigative report that
went to I guess Judge Sullivan-
>>>GERALD LEFCOURT: One of the
prosecutors committed suicide-
>>>DOUG MUZZIO: But nobody
else.
The thing is nobody
pays.
You read about the
Ted Stevens case, you read
Sidney Powell's book
License to Lie about the
Enron task force and it
goes on and on, it was
very, it was very
enlightening you know
inviting you folks in
there reading this stuff
but I have to tell you
know my skepticism is
really approaching that cynicism
line.
Talk of their strategy
a bit though.
You're sitting
there and I presume you think
you can beat it, I don't know,
I'm just making assumptions.
What's the kind of strategy,
both at the conceptual strategy
and I guess the game
playing with jurors that
you play, because it's risky
because even though if you're
ninety percent sure twenty
years versus ten percent-
>>>GERALD LEFCOURT: We had
an answer for everything.
Richard's, the facts were
really good for Richard,
but it was this overlay of what
does the atmosphere due to him
and he's a lobbyist so we
actually went before a mock
jury to try to test how
people would react.
>>>DOUG MUZZIO: How do you
do that?
Do you select?
>>>GERALD LEFCOURT: Yeah
we select from this
cross-section of the
community that would be
his jurors.
We bring them
in on a Saturday afternoon,
they fill out a questionnaire
about everything they do,
their background, their
employment, their education
and we figure out what kind
of jurors are very hostile,
in other words,
you're trying to-
>>>DOUG MUZZIO: Who's in
the room watching this or
looking through a glass
whatever however you do it?
>>>GERALD LEFCOURT: We
videotape, we have one
presenter to present both
the government and the defense.
>>>DOUG MUZZIO: Oh OK so
the personalities don't
implement- it's pure case.
>>>GERALD LEFCOURT: So there's
you know no presenter bias
and so then they sit and they
discuss it and what do
they discuss?
How did they
discuss it?
What things
ring true to them?
What
things upset them?
>>>DOUG MUZZIO: OK.
In
your experience this works
in the sense it gives you at
least parameters but do you
ever hit it dead on with the
you know the mock jury just gets
it or you blow it but you don't
make a decision just on that-
>>>GERALD LEFCOURT: No.
>>>DOUG MUZZIO: But have
you have had sort of a
perverse one of these
juries that you based some
of your decision on it and
it blew up?
>>>GERALD LEFCOURT: Well
no.
I actually had one
that went the other way
you know so I kept on
arguing this case it was
actually an oil company
that provided oil to every
city, New York City building.
And the price that they
charge was based on going to
a publication and getting
the average of various oil
companies and they all posted
their prices and so this oil
company posted the highest price
because they wanted to drive
up the price but
there was nothing wrong with it.
There was nothing illegal
about it.
They were indicted for
fraud and so how it was argued
to the jury, instead of
saying they had a right to
do it, the jurors were much more
happy hearing that there
was nothing that prevented them
from doing it.
It's the
way you characterize-
>>>DOUG MUZZIO: Oh
interesting.
Rather than
positive it's an absence
of a negative.
>>>GERALD LEFCOURT: Yes
and they were not on
notice of doing- that this
would be wrong right.
So you learn how they think
and how to pitch ideas and
there's nothing better
than to hear lay people
talking about the facts of
your case.
>>>DOUG MUZZIO: I've been
on both criminal juries
and on civil cases both in
Queens and I find them
absolutely fascinating.
And I think they do a good job.
>>>GERALD LEFCOURT: People
should volunteer for juries.
>>>RICHARD LIPSKY: One
thing I saw in the mock
jury, I believe that there
were two of them that
convicted me and two of
them acquitted me so it
was like a flip of the
coin.
>>>DOUG MUZZIO: OK.
So you
have this data.
What do you do?
So you've got a choice either
I plead to three months or
a substantially reduced
or I go to trial and-
>>>RICHARD LIPSKY: Well I
think the choice was
decided for us more or
less.
What at least I
remember from when the
grant when the mock juries
split fifty fifty, let's
say, and you don't know,
and what I saw in the mock
juries was how one
personality can basically
take over them so you can
have a really good defense
personality or the
opposite and wow is that a
heck of a risk to take but
I think the risk in
everything was taken out
when the U.S. attorney
came to Gerry and I think
you said how do you see my
client and why don't you
take it from there.
And at
that point they don't want
me to go to prison.
They
want me to try to get probation.
>>>GERALD LEFCOURT: They
realized that they had
overcharged this person.
>>>DOUG MUZZIO: And the
prosecutor McGorty talks
personally about your remorse
and how he really believes that
you were sincere and not
making a deal, I mean I read it
and said, these guys
are covering you know?
>>>GERALD LEFCOURT: Well
but you know, of course they're
never wrong but just to say
you know let's work it out.
>>>DOUG MUZZIO: Is this
very unusual in your practice?
>>>GERALD LEFCOURT: Yes.
>>>DOUG MUZZIO: And you've
had some characters.
>>>GERALD LEFCOURT: Yes and the
Fed's you know they're very,
let's go.
Always we're right,
you're wrong, and that's it.
>>>DOUG MUZZIO: OK.
So
we've talked about.
Prosecutors and the almost
inherent ability to
misconduct and we've
talked about grand juries.
If you were to establish
reforms on a national
level, because we'll talk
about the federal, what
specific things would you
recommend/ impose?
>>>GERALD LEFCOURT: One of
the things that you have
to do is to immediately
require prosecutors to
fully disclose the
evidence in their case.
They're always hiding the
ball, trying to withhold
you know key stuff so that
there's a surprise at
trial.
If there was fair
discovery and prosecutors
were required to disclose
all the negative stuff
about a witness for
instance like in the
Stevens they withheld, you
know the defense would be
prepared to meet.
Often
defense lawyers go into
trials wondering what is
this witness going to say,
how do I deal with it, you
know what is the
impeachment material, what
material exists to make
this person not
believable.
>>>DOUG MUZZIO: More.
What
else.
>>>RICHARD LIPSKY: Well
it's also that I think,
and I've become kind of an
expert on this, unfortunately-
>>>DOUG MUZZIO: A lot of
you criminals become
experts on this is the
system.
>>>RICHARD LIPSKY: The
issue of materiality.
So it's up to the prosecutors
to decide-
>>>GERALD LEFCOURT: That's
in discovery.
>>>RICHARD LIPSKY: -What
is material right and they
withhold stuff they don't
think is material but how
do they know when they
don't know what the
defense case is and they
don't know so much.
>>>GERALD LEFCOURT: So
we're saying on thing is
the discovery process.
Another thing is the
charging process.
The
grand jury is a captive of
the federal prosecutors,
there are no rights-
>>>DOUG MUZZIO: There's
no judge, there's no defense
attorney, you're not
even there.
I found this
absolutely mind blowing.
>>>GERALD LEFCOURT: So in
the charging decision
which could be the end of
it I mean once you're
charged in our society and
it's a public matter it
never goes away, it's
never off the Internet,
you could be found
innocent and it doesn't
matter, it's always there.
So the charging system,
the discovery system, the
quality of defense lawyers
really has to be upgraded.
People have to understand
how important it is to
have a fair adversary
system so that people
don't get wrongly convicted.
The New York Times yesterday
pointed out one hundred
fifty two people who are on
death row who were exonerated.
How is that possible in
America?
I mean this is scary.
They would be killed if not
for D.N.A., if not really-
>>>DOUG MUZZIO: And some
of this because of prosecutorial
misconduct.
They're yelling
at me since we're already
way over.
My special thanks
to Richard Lipsky and
Gerald Lefcourt for being on the
show.
Join me here on CUNY TV.
♪ [Theme Music] ♪
>>>DOUG MUZZIO: Hello I'm
Doug Muzzio.
Let us know
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You can reach us at
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