Was it fair for former Drummond Company executive David Roberson to be tried jointly with a Balch & Bingham lawyer -- the very lawyer who had assured Roberson and others at Drummond that their actions leading to the North Birmingham Superfund trial were legal? The answer is no, says a nonprofit bar association that submitted an amicus curiae brief strongly suggesting the trials of Roberson and Balch lawyer Joel Gilbert should have been severed to avoid the high risk that Roberson would be prejudiced. In fact, the National Association of Criminal Defense Lawyers (NACDL) says the district court's decision to try the case jointly merits a new trial for Roberson. A three-judge panel of the U.S. 11th Circuit Court of Appeals seemingly ignored the amicus brief in upholding Roberson's conviction. But Roberson likely will seek an en banc review of the full 11th Circuit. Based on the NACDL brief, he will be armed with a strong argument.
The question at the heart of the NACDL's brief is this: Did Circuit Judge Abdul Kallon err when he declined to sever Roberson’s trial from that of his attorney co-defendants, despite Roberson’s resulting inability to present a complete advice-of-counsel defense? The association's blunt answer is yes. Here is how the brief frames the argument:
This brief addresses a narrow but vitally important question: when, if ever, a criminal defendant may be tried alongside an attorney on whose advice he relied with respect to the alleged offense. A motion for severance under Federal Rule of Criminal Procedure 14(a) always requires a careful balancing of competing interests. But joint trials of attorneys and their clients raise unique concerns that weigh heavily in favor of severance. The right to seek and rely on the advice of counsel is fundamental to our system of justice. For that reason, the law has long recognized that a defendant’s good-faith reliance on the advice of counsel may serve as a complete defense to many criminal charges. And the importance of the advice-of-counsel defense has only grown with time, as our world and our legal codes have become increasingly complex. Yet joint trials of attorneys and their clients risk undermining that defense by precluding client-defendants from presenting at trial the advice they obtained from their lawyer co-defendants. Courts should view such joint trials with a healthy dose of skepticism.
Why didn't Kallon approach a joint trial with skepticism, and why didn't the 11th Circuit panel correct him? That remains baffling. The NACDL brief makes clear why it's baffling. (Some citations omitted for ease of reading.):
The facts of this case vividly illustrate the danger such trials create. David Roberson, a mid-level executive at Drummond, was indicted and tried on charges of federal bribery along with two of Drummond’s attorneys. At trial, the prosecution successfully introduced a portion of a statement Roberson made to investigators admitting his concerns about retaining the consulting services of the state legislator the trio was accused of bribing. But when Roberson sought to introduce the rest of his statement—explaining that he had resolved his concerns by obtaining advice from Drummond’s lawyers—that evidence was excluded to protect his co-defendants’ Confrontation Clause rights. That ruling appropriately sought to safeguard the other defendants’ constitutional rights under Bruton v. United States, 391 U.S. 123 (1968). But it did so at the expense of Roberson’s own constitutional right to present a complete advice-of-counsel defense. Rather than subordinate Roberson’s interests to those of his attorneys, the district court should have granted Roberson a separate trial where his critical exculpatory evidence could be properly explored.
Joint trials of attorneys and their clients will often present such problems. Advice of counsel is a commonly raised defense—and one essential to the smooth functioning of highly regulated fields. But joint trials pose inherent obstacles to asserting the defense successfully: It is particularly likely that attorney and client co-defendants will have irreconcilable defenses, or that exculpatory evidence for one defendant will inculpate another and be rendered inadmissible because of the resulting prejudice. And because trials of this sort are often lengthy—perhaps implicating corporate activities governed by complex laws and regulations—there is a significant risk that prejudice against a defendant will manifest well into the trial. Accordingly, courts should exercise special care when considering the fundamental fairness of trials implicating the attorney-client relationship. By their nature, such trials present heightened risks of prejudice and inefficiency that should tip the balance in favor of prompt severance.
How important are these issues in our criminal-justice system, especially in cases such as the Roberson-Gilbert trial? Answer: extremely important:
The right to seek and rely on the advice of counsel is central to our legal system. That right can be undermined, however, when prosecutors seek to try a criminal defendant and his attorneys at the same trial. A joint trial in these circumstances may—as here—lead to the exclusion of evidence critical to an advice-of-counsel defense. And where such prejudice requires a do-over of a lengthy trial, insisting on a joint trial at the outset may end up hindering rather than promoting judicial efficiency. Thus, while courts must weigh severance motions on a case-by-case basis, in this specific context the balance tips sharply in favor of prompt severance.
The issue boils down to balancing the risk of prejudice in a joint trial with the desire for judicial efficiency. The NACDL argues that such a balancing act, especially in cases such as Roberson-Gilbert, should almost always tip in favor of avoiding possible prejudice by conducting separate trials:
Federal Rule of Criminal Procedure 14 allows courts to “order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires” where “joinder of offenses or defendants ... appears to prejudice a defendant or the government.” Fed. R. Crim. P. 14(a). Although joint trials can often “conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays,” courts cannot “‘secure greater speed, economy and convenience in the administration of the law at the price of fundamental principles of constitutional liberty.’” Bruton v. United States, 391 U.S. 123, 134, 135 (1968). Accordingly, in considering whether severance is warranted, courts must “balance the right of defendants to a fair trial, absent the prejudice inherent in a joint trial, against the interests of judicial economy and efficiency.” United States v. Gonzalez, 804 F.2d 691, 694 (11th Cir. 1986). Such balancing occurs on a case-by-case basis, as “[t]he risk of prejudice will vary with the facts in each case.” Zafiro v. United States, 506 U.S. 534, 539 (1993). “‘Ultimately, the test is whether the defendant received a fair trial’”—that is, whether the trial achieved “[f]undamental fairness.” Gonzalez, 804 F.2d at 695, 696.
Undue prejudice may occur where “a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” That prejudice may take many forms, but two are particularly relevant here. First, a joint trial may cause unfair prejudice “when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant.” Second, a defendant may be prejudiced where “essential exculpatory evidence that would be available to a defendant tried alone [is] unavailable in a joint trial.” The Supreme Court addressed the first type of prejudice in Bruton. That case involved the admission of a non-testifying co-defendant’s confession that also inculpated the defendant. The Court held that admitting such a statement violated the defendant’s Sixth Amendment confrontation rights, because the co-defendant’s right against self-incrimination rendered the statement immune from cross-examination. In so holding, the Court rejected the argument that the prejudice could be cured by a “sufficiently clear” jury instruction “to disregard” the statement’s reference to the defendant. Accordingly, “where two defendants are tried jointly, the pretrial confession of one [non-testifying defendant] cannot be admitted against the other.” Richardson v. Marsh, 481 U.S. 200, 206 (1987).
To comply with that rule, the defendants can be tried separately. See United States v. Avery, 760 F.2d 1219, 1223 (11th Cir. 1985) (introduction of statement by “non-testifying co-defendant that implicates another co-defendant can present the compelling prejudice that requires a severance”), abrogated on other grounds by United States v. Lane, 474 U.S. 438, 449 (1986). Or the prosecution can refrain from using the co-defendant’s statement at all. Or, as the Supreme Court explained in Richardson, the statement may be redacted “to eliminate not only the defendant’s name, but any reference to his or her existence.” 481 U.S. at 211 (emphasis added). A redaction that still implicates the defendant, despite not naming her directly, will not suffice. See Gray v. Maryland, 523 U.S. 185, 195 (1998).
Another kind of prejudice can occur where being tried with others prevents a defendant from presenting “essential exculpatory evidence” of his own. That situation calls for severance because it compromises a defendant’s constitutional right to advance a complete defense. “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. Holmes v. South Carolina, 547 U.S. 319, 324 (2006).
That right finds expression in (among other places) the “rule of completeness” embodied in Federal Rule of Evidence 106. See United States v. Kerley, 784 F.3d 327, 341-42 (6th Cir. 2015) (analyzing right to present a defense in light of rule of completeness). “Under that long-standing rule, ‘the opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance.’” United States v. Burns, 162 F.3d 840, 852-53 (5th Cir. 1998). Thus, when the prosecution seeks to offer inculpatory parts of a defendant’s prior statement, the defendant generally is entitled to introduce related exculpatory portions of the same statement. See United States v. Range, 94 F.3d 614, 621 (11th Cir. 1996) (applying “fairness standard”).
Roberson was not afforded this opportunity, and that's where a constitutional violation enters the picture. In short, he was denied the "fairness standard":
In a joint trial, however, efforts to safeguard one defendant’s confrontation rights under Bruton can impermissibly impede another defendant’s right to offer exculpatory evidence. This “‘reverse Bruton’ problem” occurs where “redacting [a] defendant’s own pretrial statement to exclude references to a codefendant in a joint trial” may “den[y] the [defendant a] chance to present a complete defense.” 1A Charles A. Wright et al., Federal Practice and Procedure §224 (4th ed. rev. 2018). For example, redactions mandated by Bruton might “‘effectively distor[t] the meaning of the statement’” or exclude information that is “‘substantially exculpatory’” of a defendant. (“strict compliance with Bruton may at times violate the evidentiary rule of completeness”). In such situations, the proper solution is not to subordinate one defendant’s rights to the other’s, but to afford each a separate and fair trial.
The Roberson-Gilbert trial was not separate, and as a result, it certainly was not fair. The questions now: Will the full 11th Circuit look the other way in the face of such gross injustice? If so, what does that say about the 11th Circuit?
In essence, the NACDL notes, a defendant such as Roberson -- when tried with an attorney who has provided him counsel -- runs the risk of being found "guilty by association":
Beyond the specific context of an advice-of-counsel defense, joint trials of attorneys and clients also raise a heightened risk of prejudice due to inherent differences in their statures. As one court explained, “common sense tells us that an attorney, like a public official, lives in the public eye and thus may well be held to a higher standard of conduct by [a] jury regardless of any cautionary instructions.” United States v. Tsanges, 582 F. Supp. 237, 241 (S.D. Ohio 1984). Trying attorney and non-attorney defendants together raises an impermissible risk that “the jury might also hold the [non-attorney] defendants to this higher standard because of their association with” the attorney defendant. Accordingly, despite “the burden ... plac[ed] upon the Government and the judicial system by ordering separate trials,” it will often be that “justice requires severance.”