Trial Notes: How to Find a Federally Protected Witness
In the United States a slip and fall case involving an errant lettuce leaf causing an accident in the produce section of a supermarket is subject to greater pretrial discovery than a case involving a serious felony. By the 1960’s pretrial discovery in the United States had been liberalized, but today criminal cases remain mired in the rules of the pre-war period, with only a few exceptions.
A lawyer's failure to interview key witnesses is deemed ineffective assistance of counsel. But to interview a witness you first have to find him. Though few convictions are reversed due to ineffective assistance, it is nonetheless an act in the due process theater called a trial.
Prosecution witnesses are--obviously--under the control of the prosecution. They are advised that they are under no obligation to speak to the defense. With a nudge and a wink the prosecution lets the witness know that contact with the defense is disfavored.
How do you find a witness who has entered the federal witness protection program? An inquiry will almost certainly be met with a reply along the lines of, “the witness doesn’t want to talk to you. Go away.” The first time you see the witness is when he walks into the courtroom and promises to tell the truth, usually after a lifetime spent telling lies.
The federal Marshal’s Service provides a new identity, relocation and job assistance for the protected witness. Long after giving testimony, the witness remains shielded by the government, his past crimes covered up. Sometimes federally protected witnesses return to their old ways and commit new crimes.
Sammy Gravano, the witness who brought down John Gotti, was subsequently convicted for narcotics trafficking committed while in the witness protectin program, as was Henry Hill of Goodfellas fame.
Arthur Kane was the name given to a crooked Missouri lawyer named Arthur Katz when he entered the program before being relocated to Miami. When the stock market crashed in 1987, Kane murdered his Merrill Lynch stockbroker before shooting himself.
Before the crash, Kane had built up a brokerage account worth more than a million dollars on a salary of less than $30,000 per year. The stockbroker he murdered was ignorant of Kane’s mob connections.
Both the Central Intelligence Agency and the Marshal’s Service have had to address the effect of social media when creating false pasts and identities for either spies or protected witnesses.
A person under the age of 40 without a digital footprint is immediately suspect. Even older people should have left digital traces; mass use of the Internet has been progressing since the early 1990’s. To complicate matters for these agencies, information that was once time consuming and difficult to obtain is now available on-line. Finding out who graduated from what high school in 2001 is no longer an overwhelming time-consuming task.
Since witnesses usually take their entire immediate family into the program, the digital scrubbing of the pasts of a witness’ children must be undertaken as well. When a person enters the program, their digital identify ceases as if they had died. Web pages and other information will soon become ossified and no longer timely. There will be no more Facebook posts or tweets under the old identity. It is simply too risky; there are too many digital paths that can be traced back to a witness.
But just as the government can provide a fake driver’s license, dates on computer files can be changed and fictional web sites created. And while an Internet search may be useful to determine if an individual is a spy or in the program, searching for an unknown false name is no way to find someone. The successful location of a federally protected witness relies on the use of old school methods, and there really is only one that will work.
So here is the secret: if a wife has gone into the program, she will not break off relations with her mother. Her mother will not go into the program either. So monitor the mother and find the wife; find the wife and you have found your witness.
In some cases, the witness may stay in touch with his own mother. It is said that Osama bin Laden stayed in touch with his mother in Jeddah while the subject of a worldwide manhunt. Bin Laden’s mother lived openly in Jeddah while he was a fugitive. Monitoring her communications would not have been that difficult.
Once you find your witness, send a licensed investigator to his home or place of business and ask for an interview. Don’t show up yourself. What the witness says to you is not usable. It might be helpful, but you can’t testify. Your investigator can.
The opinions expressed herein are those of the author and no other person. The photograph is in the public domain (thank you Wikipedia).
Copyright Conundrum? A Forged Will and Dueling Estates: The Joan Anderson Letter
UPDATED--NOVEMBER 1, 2017
The Associated Press reported in late 2014 that a letter written by Neal Cassady to Jack Kerouac in the 1950's had been found after having been lost for sixty years. The letter is significant because Kerouac claimed that it was the inspiration that caused him to change his writing style, resulting in the best-selling novel On the Road.
Interestingly, the early versions of On the Road had been written in French, Kerouac's first language. Kerouac's first novel was a conventional one, nothing like On the Road, which was written on a teletype roll so that Kerouac would not have to stop to change the paper in his typewriter.
In the 1940's while visiting New York, Cassady spent a memorable weekend with a woman named Joan Anderson. Afterwards, he wrote a novella-length letter to Kerouac detailing the experience. Kerouac thought the letter was worthy of publication on its own, and so gave the letter to Allen Ginsberg in an effort to get the letter published.
Ginsberg had acted as an unofficial literary agent for the Beats before. Fn.1/ Did Kerouac have Cassady's permission to submit the letter? Ginsberg knew Gerd Stern, whom he had met in a mental hospital where both were patients. Gerd had worked for a publisher and had contacts in the publishing world. Someone--Stern? Ginsberg? sent the letter to a small press in San Francisco called the Golden Goose Press. From there the trail went cold.
Ginsberg claimed that Stern, who lived on a houseboat, had dropped the letter into the ocean. Would the recovery of the letter necessitate an action for salvage brought under admiralty jurisdiction? Stern, who is the only living witness to these events, said that Ginsberg had lied.
The truth was that the letter had indeed been received by the publisher. At this point it is not clear whether or not Golden Goose attempted to return the letter. When the letter was displayed recently in San Francisco at the Beat Museum, it was accompanied by a Golden Goose envelope. But it is unclear whether the letter was put into this envelope later for return to Stern or Ginsberg, or even if the letter were put into the Golden Goose envelope by anyone at all.
Later, Golden Goose went out of business. Jack Spinosa, an accountant, had an office on the same floor in their building. When Golden Goose closed down, their trash was put out for collection. Jack Spinosa asked--or so it is said--if he could go through the trash. He did so, and took home papers which Golden Goose had discarded.
Fast forward sixty years.
Jack Spinosa died and his daughter, Jean, came to clean out her father's house. Amongst her father's files, she found an envelope containing the Joan Anderson letter. (Note to the Associated Press: this was not the Golden Goose archive but material rescued from the trash.)
The letter was in a Golden Goose envelope. Whom was it addressed to? Stern? Kerouac? Cassady? Was proper postage affixed to the letter? It is not clear who had sent the letter to the publisher. Was it Ginsberg? Or did Ginsberg give it to Stern to send?
When Ginsberg sent the letter to Golden Goose, he was acting as agent for Cassady--through Kerouac--and was a bailee of the physical letter. Title to the letter never passed out of Kerouac's hands unless Kerouac gave it or sold it to Ginsberg. Neither scenario is likely.
Kerouac complained in a Paris Review interview that the letter belonged to him and that Ginsberg should have taken better care of it. This suggests that Ginsberg was a bailee (as literary agent) or merely the agent of his principal, Kerouac.
When the letter was found, was it a letter or a manuscript?
Kerouac did not own all the rights to the letter. Under copyright law, the right to publish is distinct from ownership of the paper the letter is written on. Thus, the contents of the letter will be the property of the Cassady estate. Cassady had at least one grandchild, so there very well could be living relatives. So the right of publication would be held by Cassady's heirs.
If Cassady had no heirs, conceivably Mexican law would apply because he died in Mexico. Was he domiciled there? Was Cassady domiciled anywhere? His life was famously nomadic. Property that is owned by a person who dies without heirs is escheated to the state of the deceased's domicile. But states in the United States cannot hold copyright, at least in the 11th Circuit.
The right to control publication of the contents of a letter is separate from ownership of the physical sheets of paper. James Joyce's heirs prevented scholars from publishing his letters for years. And a biographer who used J.D. Salinger's letters to Joyce Maynard was forced to redact those letters from his book.
Salinger's physical letters however, were put up for auction because they belonged to Ms. Maynard. They were purchased by Peter Norton (of Norton Utilities fame) who then gave them back to Salinger. So while Salinger controlled publication of his own letters, he did not control the physical sheets of paper.
More recently, Glenn Greenwald of The Intercept complained when a lawyer sent him a threatening legal notice in the form of a letter and then claimed that copyright law prevented Greenwald from publishing the contents of the notice. A legal notice is not, however, a "work" protected by copyright law: Greenwald is free to publish the notice. Framing a legal notice in the form of a letter does not change this analysis.
A writer who submits a manuscript to a publisher does not surrender ownership of that manuscript to the publishing company absent a specific agreement to the contrary. It is a classic "offer to make an offer." The fact that the Joan Anderson letter (or Cassady manuscript) was found in Jean Spinosa's father's belongings does not divest the Kerouac estate of the right of publication.
Does the passage of time affect ownership claims? In real estate, it certainly does: this is what is known as adverse possession. No similar rule exists in respect of copyright. Thanks to Sonny Bono and the Disney Company, the letter (or manuscript's) contents are still subject to copyright. The Kerouac estate controls these rights--or does it?
The history of the Kerouac estate is convoluted. After extended litigation, an appellate court in Florida ruled that the Kerouac estate exercises authority under a forged will. The Florida appellate court decision must be given full faith and credit in California.
An objective observer might well conclude that Kerouac's now-deceased daughter Jan was defrauded through the creation of a fraudulent will by Jack Kerouac's wife Stella, and after her death, by Stella's family.
It is not clear whether the Joan Anderson letter is covered by the terms of the decision denying Jan Kerouac's claim. But a court of equity will rarely give the benefit of the doubt to someone who inherited property under a forged instrument.
Not surprisingly, litigation has commenced. The Kerouac Estate has sued for possession of the letter. Jean Spinosa has filed an action to quiet title. Cassady's heirs have made their own claim that not only are they entitled to control publication of the letter's contents, but that the letter was a manuscript and so is their property.
The dispute is not merely a theoretical one: the manuscript to On the Road sold for 2.4 million dollars in 2005. The physical pages of the Joan Anderson letter are expected to bring in at least a six-figure amount at auction. Publication rights are not included.
The Kerouac estate says once a letter, always a letter, claiming that the letter did not lose its character as a manuscript because Stern, Ginsberg and Golden Goose may have treated the pages as a manuscript. But is this correct? Does a letter cease being a letter when submitted as a manuscript to a publisher? The important point to remember in this regard is that there was no copy made of the letter: the manuscript consisted of the original pages that Cassady typed and mailed to his friend Jack.
And what of Jean Spinosa, the person who found the letter? She has rights to the letter under California's abandoned property law--which is why the issue of the envelope and the existence of postage may be important. If Jack Spinosa removed the letter from Golden Goose's outgoing mail rather than the trash, then he did not obtain possession legally. Otherwise, Joan may well have acquired title to the physical pages under California law.
Thanks to the Drug Enforcement Administration, Alan Weberman (the semi-famous Dylanologist, known for picking through Bob Dylan's garbage) and many others (the Peruvian police were able to locate Sendero Luminoso's leader, Abímael Guzmán, by looking through his trash) it is well established that there are no privacy rights to material thrown out in the trash and a person who picks an item out of the trash acquires title to that property.
This is somewhat of a simplification--a person does not obtain a license to computer software thrown out in the trash. At least, not yet.
Cases like this one are not likely to be seen again: people just don't write letters like this anymore. Because a letter sent by email is not tangible, there is no bifurcation between ownership and publication rights. This distinction is almost as old as copyright law itself. Is losing the distinction important? Fn.2/
Portions of the letter have been published on the Internet. The photograph above shows the similarities between the physical manuscript of On the Road and the Joan Anderson letter.
November, 2017 Update:
Litigation over ownership to the physical letter was wisely settled by the parties. If news reports are correct, the judge in the case pointed out that it was in everyone's best interests to come to an amicable agreement. This is what happens when someone with a strong case--say, the Kerouac Estate--is made to realize that their position isn't as strong as they had previously thought--such as when a Florida appellate court had deemed a will fraudulent. Fn.3/
An initial effort to auction the letter by Sotheby's failed as no bidder met the reserve. A second effort, conducted by a second auction house, resulted in the sale of the letter to Emory University in Atlanta. http://news.emory.edu/stories/2017/09/upress_kerouac_anderson_letter_acquisition/campus.html.
The letter is currently on display in Atlanta and may be viewed by the public until September, 2018.
Unfortunately, the letter has not yet been published and litigation sadly continues. Perhaps the judge will use his powers of persuasion again so that we can all read Cassady's manuscript. Or letter,
depending on your point of view.
- In the biography Jack's Book, by Lawrence Lee, Ginsberg is quoted as saying, "I circulated all that material to the Partisan Review, brought a lot of it to John Hal Wheelock at Scribner's, and talked to John Hollander, as an agent..." There is little doubt that Ginsberg was indeed acting as a literary agent, as claimed by the Cassady Estate.
- I was wrong on this point, as the Greenwald example illustrates. The distinction may be with us for a while yet, especially if the lawyer who sent the threatening notice tries to sue Greenwald for a copyright violation.
- Fraudulent will or not, I think it is fair to point out that the Kerouac Estate has done a good job of conserving Kerouac's legacy and has fairly permitted access to materials, unlike the estate of James Joyce, which destroyed material.
A client came in to see me urgently today. He had a business idea, and wanted to run it by me to make sure that there would be no legal issues.
“I'm going to take money from my customers and then pay their bills,” he said.
“Do you have a banking license?” I asked.
“Of course not.”
The client was a young man, so I asked him if he had any experience in the banking industry.
“None whatsoever,” he said, “I've never worked even one day in a bank.”
“An accounting degree?”
“I majored in medieval history in college,” he said. “There was no time to take business courses. I was worried that a hard course like accounting would affect my GPA.”
“Where do you plan to keep your customers' money?”
“I'll open an account at my bank.”
“A single account?”
“For all your customers?”
“And your bank is OK with this?”
“They told me to go ahead.”
“How many customers do you expect to have?”
“At the beginning, not many. Eventually dozens. If I'm successful, maybe more.”
“Are you going to pay your customers interest?”
“Not a dime.”
“Why would your customers give you money to pay their bills?”
“No, my own. If I'm going to pay their bills, it's easier if I have their money.”
I told him that the idea sounded-half baked. Essentially, he was creating a financial institution—a bank within a bank. He claimed that it would be convenient for his customers, and I answered him by saying I didn't see how his services would be any more convenient than the services the bank could offer.
Banks have a good deal more experience in this area than individuals with no business or banking background. There is nothing wrong with studying medieval history, but it doesn't exactly prepare you to operate a financial institution.
He asked me what licenses he would need. I told him that there were several I knew of, and probably some that I didn't. He would need a state money transfer license. If his business crossed state lines, and businesses always cross state lines--
“The ketchup case! Katzenbach v. McClung! Heart of Atlanta Motel!” he shouted, “interstate commerce!”
I started to get suspicious. I ran through the licenses and their requirements but all he did was sit there and smile, unflappable. He didn't take notes, and it seemed to me that as I got into the details of the licenses, he wasn't paying attention.
“There's only one license I really need,” he finally told me.
“And that is?”
“I just passed the bar! With my bar admission I can open an attorney's trust account at my local bank. I don't need any experience at all! They told me that I don't need any special licenses, either.”
He was right and I was wrong. The mere fact of bar admission allowed him to open up a trust account into which he would deposit funds from clients, commingle those funds with monies from other clients –but never his own—and disburse those funds as needed himself, without having to go back to the client for payment.
He knew the commingling rule and a few others. Once upon a time it was absolutely forbidden to have even a dime of your own money in a trust account, but now if a bank requires a minimum balance of say, $100, to keep an account open you can put your own money into the account to maintain the balance.
The principal reason why attorneys are disciplined is for trust account violations. This is not surprising, given that accounting or business courses are not prerequisites for bar admission.
An attorney who manages a trust account is in effect, a financial institution, receiving deposits and making payments. I am not picking on young attorneys who have little experience handling trust accounts.
Bankruptcy proceedings in the Dewey, LeBoeuf case showed that the firm's attorney CFO had no accounting degree but instead had majored in medieval history in college, just like this young man.
There is a simple solution to this problem: the Bar could pass a rule forbidding attorneys from maintaining trust accounts and instead requiring clients to pay expenses directly. Where funds have to be held in escrow, the trust department of any bank is familiar with the rules governing financial institutions and will be happy to collect fees from the parties for this service. Attorneys would no longer have to worry about trust accounts and accounting—all of that would be handled directly by banks, financial institutions licensed to handle funds and staffed by trained personnel, unlike my "client" who didn't have any training at all.
He later admitted that he was pretending to be a client so that he could get a job interview. While this is indeed an innovative way to get a job interview, he seemed surprised when I gave him a bill for my time.