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Affirming the Jim Brown Rule



When state Insurance Commissioner Jim Brown was convicted of lying to FBI agents, I wrote that henceforth Louisiana politicos would do well to think of Brown before agreeing to talk to the feds -- and then invoke "the Jim Brown Rule."

The Jim Brown Rule is very simple: if you're a public figure in Louisiana, do not talk to the FBI.

I certainly don't advocate obstructing federal investigations, but the plain truth is that FBI agents have no legal duty to tell people the truth. On the other hand, if you're being interviewed by the FBI, you have a legal duty to tell them the truth. As Brown found out the hard way, you can go to jail if you don't.

That hardly seems fair, but fairness won't get you very far in a criminal trial. Brown found that out the hard way, too.

The U.S. Fifth Circuit Court of Appeals, on the same day that it upheld former Gov. Edwin Edwards' convictions on gambling corruption charges, affirmed Brown's convictions on five counts of lying to federal agents.

Brown, Edwards and another defendant were cleared of all the substantive charges in the case (allegedly confecting a "sham settlement" to help Cascade Insurance Company), but Brown was sentenced to six months in jail for lying to the FBI.

I thought Brown raised some interesting points in his appeal, particularly his request to view FBI Agent Harry Burton's hand-written notes from the Brown interview. Typically, such interviews are not tape-recorded. FBI agents take notes by hand, then transcribe them neatly onto a form known as a "302" back at the office.

The trial court gave Brown and his attorneys copies of Burton's 302, but not his handwritten notes. On the witness stand, Burton used his 302 -- not his original notes -- to refresh his memory of the interview and the specific instances in which Brown allegedly lied. Neither the 302 nor the hand-written notes were introduced as evidence. It was Burton's word against Brown's, and jurors believed Burton.

Typically in such cases, defendants don't get to look at agents' original notes. In this case, trial Judge Edith Brown Clement examined Burton's handwritten notes in her chambers and concluded that the 302 "accurately reflected the information contained in the notes," according to the appeals court decision. She thus denied Brown's request for the original notes.

The appeals court decision reproduced substantial portions of Burton's original notes, and after comparing them to the 302 it's hard to see how Brown's defense was hindered by getting the 302 instead of the originals. In that sense, Clement was vindicated by the appeals court decision.

On the other hand, I'm not sure how justice would have been harmed if the notes had been turned over anyway -- as a matter of fairness. After all, as the appeals court noted in its decision, the tapes of Brown talking to EWE certainly gave jurors ample evidence that Brown had lied to the FBI about his discussions with the former governor. Moreover, Brown had an attorney present during the interview, and that attorney took notes as well. But, at trial, neither that attorney nor his notes were produced by Brown to challenge Burton's testimony.

Clement made the correct decision under the law. Indeed, there's a ton of precedent for her ruling not to give Brown the originals.

But my point is one of fairness, which sometimes has little to do with the law. It isn't fair that government agents can lie to us to see if we're telling them the truth. And it isn't fair that the government can use its own handwritten notes to create a formal document that later could help send us to jail -- but not let us see the hand-written original.

But that's the law, fair or not.

I just hope the FBI will understand where I'm coming from if agents ever try to interview me. After all, in upholding Brown's convictions, the Fifth Circuit has affirmed the Jim Brown Rule as well.

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