Gillers, in a letter dated January 6, 2017, essentially told Grassley and ranking Democrat Dianne Feinstein that harsh criticism directed at Sessions from former state judge James S. Garrett should be taken seriously. Sessions' conservative supporters had claimed that a 2001 ruling by the U.S. Eleventh Circuit Court of Appeals had, in effect, overridden Garrett's harsh findings. Gillers said the 2001 ruling had done no such thing, and that Garrett's conclusion -- that prosecutorial misconduct in the Alabama AG's office headed by Sessions was the worst he had ever seen -- remained credible and largely unchallenged. From the Gillers letter:
Dear Senators Grassley and Feinstein:
In connection with the nomination of Senator Jeff Sessions to be Attorney General of the United States, I have been asked to address the factual findings of Alabama State Judge James S. Garrett, dated July 16, 1997, in the case of State of Alabama v. TIECO, Inc. I have also been asked to explain the effect of United States Steel, LLC [“USX”] v. TIECO, Inc., 261 F.3d 1275 (11th Cir. 2001), on the credibility of Judge Garrett’s findings.
Since 1978, I have taught both legal ethics and evidence at New York University School of Law and am qualified to speak about doctrines in both fields. My resume can be found on the law school’s website.
In sum, the Garrett opinion is the most scathing criticism of a prosecutorial office I have read in the nearly 40 years I have been teaching legal ethics. It describes an office that is oblivious to the constitutional and ethical rules that govern prosecutors. I also conclude that the subsequent Eleventh Circuit’s opinion has no effect on the credibility of Judge Garrett’s factual findings about the behavior of the office of the Alabama Attorney General.
Does Gillers know what he's talking about? From the letter:
In my academic life, especially in conjunction with the publication of my casebook on legal ethics, now in its tenth edition, I have read many court opinions criticizing lawyers or law firms. Conservatively, I would say that I have read more than 2,000 such opinions since 1978, probably closer to 2,500 opinions. The vast majority of these opinions criticize individual lawyers. Occasionally, a court will criticize a private law firm. Rarely will a court criticize an entire prosecutorial office. I have never read an opinion critical of any law office that is as harsh as Judge Garrett’s opinion censuring the office of the Attorney General of Alabama.
Does Garrett's opinion remain credible, even after the Eleventh Circuit's findings in 2001? Absolutely, says Gillers, and his reasoning involves the complex topic of hearsay:
What effect did the Eleventh Circuit’s opinion have on the credibility of the Garrett opinion? None. The claim that the Circuit Court’s ruling means that Judge Garrett’s factual findings are unreliable misreads the Circuit Court’s ruling and misunderstands the law of evidence and the rule against hearsay. . . .
In the subsequent federal litigation between TIECO and USX, the district court admitted Judge Garrett’s opinion and the memorandum of TIECO’s counsel against USX
Judge Garrett’s opinion was hearsay when admitted in the federal case against USX. The memorandum of TIECO’S counsel was also hearsay. So USX faced hearsay within hearsay. There was no hearsay exception that would have allowed the admission of this evidence in the federal case. So the historical presumption of unreliability was not overcome. USX was not a party in State of Alabama v. TIECO. So it never had a chance to contest this proof there. If in the federal case USX’s lawyers had objected to the admission of Judge Garrett’s opinion on hearsay grounds, their objection would have been upheld.
But USX’s lawyers did not object on hearsay grounds. As a result, they waived a hearsay objection. They did object on another ground. They asked the trial judge to exclude Judge Garrett’s opinion (and the incorporated memorandum of TIECO’s counsel) as unfairly prejudicial to USX and misleading to the jury. A trial judge is empowered to exclude even relevant evidence for these reasons, but the trial judge here declined to do so. The Circuit Court held that this was an abuse of discretion. It held that although the Garrett opinion could not be excluded on hearsay grounds – because there was no hearsay objection – the presumed unreliability of all hearsay also made the evidence unfairly prejudicial and misleading in TIECO’S case against USX.
In essence, Gillers said, Sessions' supporters were reading language into the Eleventh Circuit opinion that wasn't there:
It is important to understand what the Eleventh Circuit did not say. It did not say that Judge Garrett’s findings of fact, incorporating counsel’s memorandum, were inaccurate or unreliable as against the State of Alabama. It did not question the record support for Judge Garrett’s factual findings. Unlike USX, the State of Alabama did have the opportunity to challenge the evidence before Judge Garrett and had failed to do so. Judge Garrett’s findings were and still are reliable against the office about which they were made – the office of the Attorney General of Alabama, which prosecuted the case against TIECO. Nothing in the opinion of the Eleventh Circuit changes that.
That leaves us with the following powerful words from Gillers. Members of Congress should have paid heed, and members of the public should remember them as Sessions' role in KremlinGate likely is exposed in the weeks and months ahead, especially if he testifies before the Senate in an open session tomorrow (6/13) -- a possibility that has been widely reported:
Senator Sessions was Alabama’s Attorney General when all or nearly all of the underlying events took place. The man who headed the office described in the Garrett opinion is unqualified to be United States Attorney General.