FREEDMAN: I would concur in that, but that standard, as it has been set down in the authorities that I have seen, is that he is not entitled to make arguments that are wholly frivolous. Arguments that are beyond fair argument, good faith argumentation--I think on the facts of this case it would be impossible to make a finding that he has acted other than in good faith in presenting arguments that support his position.
COURT: I am going to invite you or him to recite to me anything in the record of this case that shows that the government--and I keep emphasizing the word "deliberately"--deliberately suppressed evidence in the Supreme Court of the United States. I invite you to do that.
FREEDMAN: "Deliberate" is a term of art. As I heard the case just sitting here today, I was satisfied in my mind on the basis of what I heard that the government had made a conscious decision not to present evidence and not to permit the Supreme Court to know what any Supreme Court Justice sitting on this case would want to know and be entitled to know. That's my judgment having sat here.
The fact is that the word "deliberate" is a term of art. It does not mean necessarily willful in the ordinary criminal sense as defined in this circuit, for example. This is a quote:
"Where the prosecutor's suppression is deliberate, by which we include not merely a considered decision to suppress, taken for the very purpose of obstructing but also a failure to disclose evidence whose high value to the defendants could not have escaped the prosecutor's attention--"
The only question, therefore, is whether Professor Dershowitz was acting in good faith in drawing his inference from the facts that we heard this morning and other facts that are of record in this case despite the fact that you as the prosecutors might draw a different inference, but it is in the context of the rules set down by the Court of Appeals that he made the allegation "deliberate," which is a term of art, and I think supported it, but at least made a colorable argument, a non-frivolous argument to that effect.
COURT: I will hear whatever else you want to say. I invite you to submit a brief, if you feel you want to, by next Monday.
This is not a matter that concerns the government. I am not interested in hearing the government. This is strictly a matter within the Court's jurisdiction.
Would somebody leave word at my chambers this evening as to whether or not we are going to go forward at 10 a.m. It does not really make any difference. I will be here at 9:30 a.m.
DERSHOWITZ: Would your Honor like to hear what my own state of mind was in regard to what I meant by "deliberate," and what I had in mind and what I think the government has proved?
COURT: Yes.
DERSHOWITZ: I think this may have been one misunderstanding.
COURT: Let me say what I understood by what you said. I understood you, by your use of the word "deliberate"--and certainly any layman would understand your use of the word "deliberate" to be in substance: premeditated for an evil purpose suppressed evidence. That's one of the two definitions in substance that the Dean just read. That is what I understood you to say in court. I am perfectly happy to hear you say what you had in mind.
DERSHOWITZ: In preface, you have to understand that right at the beginning of our memorandum of law we define "deliberate" to mean one of two definitions, that is, not merely considered decision to express taken for the very purpose of obstructing but failure to disclose evidence. That is what we set out as our definition in the memorandum of law. My reference to "deliberate" was intended as a reference to that standard. I think your Honor knows me well enough and has heard me often enough to know that on every occasion I have accepted the good faith representations of particular attorneys appearing in this court. I have always said that I do accept the good faith representations of Mr. Putzel, Mr. Jaffe, Mr. Sagor.
This has been a hotly contested one and there have been some matters where I personally believe the government has not the very high standards that are required of them in terms of disclosure.
