Here's a closer look at how bogus the immigration reform charade really is.
One of the newly reassigned mangers is Janis Sposato. She was described last week as a "former special counsel to the (INS) commissioner" who will now become "assistant deputy executive associate commissioner for immigration services." Who is this woman with more titles than Catherine the Great, and what qualifies her to help prevent future terrorists from exploiting our immigration policies? Sposato did not return my call seeking comment, but here's what I've learned:
Sposato has worked at the Justice Department for more than a quarter-century. Her specialty is ethics, not immigration enforcement, immigration services or counterterrorism. Her past positions include trial attorney for the Criminal Division, special assistant to the assistant attorney general for the Civil Division, attorney adviser for the Office of Legal Counsel, general counsel and deputy assistant attorney general for law and policy in the Justice Management Division, and acting assistant attorney general for administration.
One of her main accomplishments involves the creation of video games for Justice Department employees. According to the Aug. 30, 1993, issue of Government Computer News, she got the idea from her 6-year-old son. "My concern about ethics training coincided with my son beginning to play educational computer games," Sposato said. "At the office, I also noticed that many people who had computers on their desks played games when they had downtime. I decided this was the way to give people ethics training inexpensively, when and where they want it."
Feel safer now? Here's a lifetime civil servant and ethics guru who thought nothing of government employees using their taxpayer-funded computers to play games. Instead of ordering them to delete Solitaire, Sposato secured a $250,000 contract with Legend Entertainment Co. of Chantilly, Va., to develop interactive ethics software for the entire workforce.
Legend Entertainment, by the way, is a leading maker of adult fantasy games such as "Spellcasting 101: Sorcerers Get All the Girls" -- in which, as the company describes it, "you play a nerd named Ernie Eaglebeak, who attends Sorcerer University to learn how to cast spells, and more importantly, pick up girls." The game box features a lascivious Harry Potter look-alike embraced by two buxom, barely-clad blondes.
The Clinton administration appreciated Sposato's creative management so much that it awarded her a total of $82,700 in cash bonuses.
Sposato's other claim to fame is far more troubling. In 1987, a federal judge blasted the Justice Department for stealing a private software system called PROMIS used by prosecutors to manage their cases. PROMIS was developed and enhanced by a tiny company called Inslaw, Inc. Sposato, then top ethics cop at the Justice Management Division, was singled out by U.S. Bankruptcy Judge George F. Bason Jr. He lambasted Sposato for dealing "so casually with the repeated serious allegations of outrageous conduct" by a senior Justice official who oversaw contract issues involving PROMIS. That official, C. Madison Brewer, was a disgruntled ex-employee of Inslaw with a huge conflict of interest in the matter.
The government, Judge Bason said, stole Inslaw's software through "trickery, fraud, and deceit" with "contempt for both the law and any principle of fair dealing." Sposato's involvement, the judge said, "can be charitably described as willful blindness to the obvious." Yet, Sposato suffered no reprisal.
As for PROMIS, Washington Times reporter Jerry Seper reported in June 2001 that former FBI agent and convicted spy Robert Hanssen sold an enhanced version to Russian crime figures, who in turn are suspected of selling it to Osama bin Laden, who could be using it to monitor financial transactions and intelligence-gathering efforts.
Perfect. This game-playing career bureaucrat, faulted by a judge for looking the other way while the government allegedly pirated software that may be in the hands of murderous al Qaeda operatives, has now been promoted as a symbol of the INS's commitment to accountability in the war on terrorism.
"Quandaries": It's more than just a Justice Department video game. It's a living national security nightmare.
Reassignment may not be enough. At the very least, get this holdover from the Carter era out of government, time to ask for her resignation.
Absolutely amazing. Are these our best and brightest? God help us.
Pathetic. Absolutely pathetic.
More on Janis Sposato:(Long, but a good story)
The American Lawyer December, 1987
VENDETTA
By Mitchell Pacelle and Robert Safian
William Hamilton was convinced that someone in the Justice Department was out to get him and to drive his company into bankruptcy. He was right.
On Monday, June 9, 1986, the Hamilton family went on an outing. William Hamilton, his wife, Nancy, and their six children, ages 3 to 22, piled into the family station wagon and drove to the federal courthouse in Washington, D.C. There, Hamilton filed a $ 30 million suit against the Department of Justice. The suit would change his life -- and would come to wreak havoc in the federal government.
"It was a bittersweet kind of day," recalls Hamilton, a stocky man of 47 who is president of the nation's leading law enforcement case-management software company. Hamilton had hoped to avoid a legal battle against his most important customer. In more than 20 years of dealing with the government, says Hamilton, he had never encountered a problem that he couldn't solve without confrontation.
But this time he was stuck. Despite legal help from former attorney general Elliot Richardson, Hamilton could not budge the department. The suit was anything but conventional. It mentioned contract law, bankruptcy law, and computer software copyrights. But its focus was an outlandish allegation of a conspiracy within Justice.
Hamilton charged that a Justice employee who held an old grudge against him had tried to drive Hamilton's company out of business by disrupting the administration of this company's $ 10 million contract with the department. And when he asked high-ranking Justice officials to investigate the possibility of bias, Hamilton alleged, they had ignored his pleas.
The claims reeked of paranoia. Hamilton's company had gone into bankruptcy in early 1985. Hamilton, it appeared, was looking for someone other than himself to blame.
In time, however, depositions from Justice Department officials, documents, and testimony during four days of hearings and two weeks of trial would paint a far different picture. They would convince a federal bankruptcy judge that the vendetta Hamilton suspected did, in fact, exist -- and that higher-ups in the department had irresponsibly refused to take account of the injustice.
Justice Department officials did not return phone calls or declined to comment on the case, citing pending litigation. But in an interview in his downtown D.C. office, Hamilton talks about his disturbing experiences with Justice. "I think, in a perverse way, I was . . . slow to catch on," he muses. He taps his foot nervously. "I feel silly," he says. "I wasn't paranoid enough."
THE RISE AND FALL OF INSLAW
Hamilton's dealings with the federal government began in 1962, when he joined the Defense Department's intelligence division, the National Security Agency. Fresh from Notre Dame University, Hamilton stayed at NSA for seven years, rising to deputy branch chief. In the process, he developed a sophisticated understanding of computers.
By 1969 the agency's "hermetically sealed environment" made him long for "a normal life," Hamilton says, so he parlayed his computer expertise into a job in the management consulting department of Peat, Marwick, Mitchell & Co. Within a few months he started a project to develop case-tracking software for the U.S. Attorney's Office in D.C. The result -- the Prosecutor's Management Information System, known as PRIOMIS -- was widely considered the nation's first justice management software.
PROMIS so excited Hamilton that in 1971 he left Peat, Marwick to improve the software, which by contract rights belonged to the government. After 18 months as an independent contractor for the U.S. Attorney's Office in D.C., he created his own not-for-profit company called the Institute for Law and Social Research and continued to improve PROMIS with grants from the Justice Department's Law Enforcement Assistance Administration.
When LEAA was dismantled in 1981, Hamilton organized INSLAW, Inc., a private corporation, to buy out the assets of the not-for-profit company. Because it had been developed with government funding, PROMIS was in the public domain. Hamilton, however, raised private funds to refine the software and claimed the hybrid -- the publicly funded software with its privately funded enhancements -- as a proprietary product. He marketed the hybrid, still called PROMIS, and several derivatives to prosecutors, court systems, private attorneys, and others.
It seemed that Hamilton had gotten his big break in March 1982 when the Justice Department awarded INSLAW a three-year, $ 10 million contract to computerize the nation's 94 U.S. Attorney's Offices. According to the contract, INSLAW was to install the original PROMIS software, plus five additions that were in the public domain, on minicomputers in the 20 largest offices, and to develop a modified version of the software to run on word processors in the smaller offices. In the fiscal year beginning October 1, 1982, INSLAW's revenues went up about 35 percent to $ 7.8 million -- more than half of it from the U.S. Attorney's Office contract. By 1984 INSLAW employed more than 180 people. Hamilton and his wife, Nancy, who together owned 60 percent of INSLAW, ploughed their profits back into the company. It seemed like the best investment they could make.
But the bubble burst almost immediately. The first disturbing signal from Justice came in a November 1982 letter in which the department requested that Hamilton deliver to Justice the PROMIS documentation and source codes that would allow Justice to install the system itself. He refused, contending that some of the software was private property.
Two months later Justice threatened to postpone certain payments to INSLAW. Hamilton gave in and handed over the documentation, including the hybrid software. Justice, in turn, withdrew its threat and agreed to negotiate with INSLAW for the right to use the hybrid --
if INSLAW could prove that it was privately funded and
if the government chose to install it.
Hamilton's troubles with Justice intensified. In July 1983 the department suspended nearly $ 250,000 in payments to INSLAW, claiming the company was overcharging the government for time-sharing. Finally, in February 1984, the government terminated INSLAW's contract to put PROMIS onto word processors at the smaller U.S. Attorney's Offices, a project that had been generating revenues of $ 200,000 to $ 300,000 a month, according to Hamilton.
Suddenly INSLAW's finances were in shambles. By February 7, 1985, the government had withheld payment on $ 1.77 million in costs and fees. INSLAW, the market leader, filed for bankruptcy. Hamilton says he was mystified. How could everything he had built fall apart so fast -- and with no explanation?
Hamilton's paranoia quickly found a focus: C. Madison "Brick" Brewer, who managed the PROMIs installation for Justice. Brewer had spent most of his career in the U.S. Attorney's Office in D.C. -- except for two years as general counsel of INSLAW's not-for-profit predecessor. Hamilton says he himself had fired Brewer in 1976. Brewer, he adds, is a "very amiable, pleasant guy" but did not follow through on nonlegal tasks assigned to him. Although there was no "ugly disagreement," Hamilton says, he was uneasy when he realized that he would have to deal with Brewer on the Justice contract. He worried that Brewer might hold a grudge. Now, it seemed his fears had been realized.
THE SILENT TREATMENT
For three years, Hamilton and his changing cast of attorneys tried unsuccessfully to find someone at Justice who would listen to Hamilton's suspicions about Brewer and undertake a serious inquiry. The indifference they encountered only confirmed Hamilton's fears that someone in Justice was out to get him.
Hamilton began by asking Brewer's superiors -- William Tyson, the director of the Executive Office for U.S. Attorneys, and deputy director Laurence McWhorter -- to investigate. Both later testified that they spoke to Brewer but found nothing to warrant taking him off the project. The Justice procurement staff, which oversaw the PROMIS project, was equally unresponsive to requests from INSLAW's contracts attorney, Harvey Sherzer, then a partner at D.C.'s 22-lawyer Pettit & Martin and now a partner at 122-lawyer Howrey & Simon.
Early in 1983 Hamilton enlisted the help of former attorney general Elliot Richardson, a partner in the D.C. office of New York's Milbank, Tweed, Hadley & McCloy. A supporter of Hamilton's computer innovations at Justice in the 1970s, Richardson had been the chairman of the board of trustees of INSLAW's not-for-profit predecessor.
"It was important, in the circumstances, to try to find a level in the Department of Justice at which there could be some assurance, or hope, that the matter would be dealt with objectively and on the merits," explained Richardson in subsequent testimony. "That, it seemed to me, was a service that I might be able to provide." He became the biggest gun in Hamilton's arsenal of attorneys.
According to one INSLAW lawyer, however, Justice attorneys "took offense that Bill was going to people like Elliot Richardson. . . . There was the intimation that he was going over their heads, going outside of normal channels."
In fact, Richardson didn't waste time with underlings: He went right to deputy attorney general Edward Schmults, the number-two man at Justice. Schmults referred him to the assistant attorney general for administration, a position that would turn out to be a revolving door. For more than a year Richardson negotiated fruitlessly with three consecutive assistant attorneys general for administration.
After INSLAW went bankrupt, Richardson -- along with well-connected Reppublican Donald Santarelli of D.C.'s Santarelli, Smith, Kraut & Carroccio -- decided to try again with the deputy A.G. By now, the position had been assumed by D. Lowell Jensen.
The frustrating result of the March 1985 meeting with Jensen was another round of negotiations that ended when management division general counsel
Janis Sposato insisted that INSLAW -- which claimed Justice owed it $ 1.77 million -- pay $ 680,000
to Justice and acknowledge the government's right to unrestricted use of the software for any federal project.
Sposato also announced that the government would not pay any additional fees for software obtained under the contract.
In later testimony, Richardson described the government's offer as a blunt, "'Screw you, Mr. Richardson.' . . . It's an offer that condemns INSLAW to death." Hamilton's bankruptcy lawyer, Charles Docter of D.C.'s six-lawyer Docter, Docter & Salus, agreed. "We concluded that the Justice Department was completely prejudiced against [Hamilton]," Docter recalls. "Mr. Brewer had marshaled the troops."
Hamilton was running out of people to complain to. He and his lawyers had approached a dozen department officials, including general counsel
Sposato, many of them more than once. Santarelli had followed up his meeting with Jensen with a letter to Attorney General Edwin Meese III. No one had taken the allegations seriously enough to start an investigation.
ENEMIES AT THE TOP?
Desperate for results, Hamilton and Richardson made another plea to deputy attorney general Jensen. The "last-ditch effort," as Richardson describes it, took place on December 4, 1985. "I told [Jensen] that I could only conclude that the performance of the department had been scandalous," said Richardson in later testimony. "I was not trying to get his view or to get him to assume responsibility . . . but only to grasp the fact that what we genuinely believed to be meritorious positions were not getting addressed at all."
Jensen's response, recalls Richardson, "was tentative and noncommittal." Jensen did mention, however, that he wasn't impressed with PROMIS.
Hamilton was disturbed. He remembered that when he introduced PROMIS in the 1970s, Jensen, then district attorney for Alameda County, California, was touting a similar case management software package he had helped develop but in which he says he had no financial interest. That Jensen would bring up his opinion of the PROMIS software made Hamilton wonder, he says, whether INSLAW had more powerful enemies than Brewer.
Jensen, now a federal district judge in San Francisco, declined comment for this article. He did, however, discuss his meeting with Richardson and Hamilton in a deposition in June. "I don't recall that I said that I was not impressed with PROMIS," he stated. "I think it was more of a relative statement in terms of whether . . . I would use PROMIS or something else [in the district attorney's office]."
Shortly after the meeting Richardson suggested a suit. Hamilton, finally convinced that Jensen would not step in and solve his problems, agreed.
Leigh Ratiner -- a partner at D.C.'s Dickstein, Shapiro & Morin whom Richardson had recruited -- devised a strategy to circumvent the department's sovereign immunity from fraud claims. Ratiner framed the complaint as an adversaryproceeding within INSALW's Chapter 11 reorganization, charging the government with violating the automatic stay provision of the bankruptcy code. By misadministering the PROMIS contract, Ratiner claimed, the department was interfering with INSLAW's efforts to reorganize.
INSLAW filed suit in June 1986, accusing Brewer of seeking revenge on Hamilton by forcing INSLAW into bankruptcy and "threatening to expand improperly" its use of INSLAW's proprietary software. The suit also accused deputy attorney general Jensen of having a "negative view" of PROMIS and failing to stop Brewer's misconduct.
If Hamilton harbored any hopes that Justice would settle once the charges were public, he was wrong. In July Ratiner met with deputy attorney general Arnold Burns, who had replaced Jensen. Burns had already received a letter from Maryland senator Charles Mathias, Jr., asking him to consider settling the INSLAW case. But once again, INSLAW was rebuffed.
Hamilton's litigation plans soon began to unravel. In October Ratiner informed Hamilton that he would be leaving Dickstein, Shapiro. (As reported in
Legal Times, Hamilton asserts that Dickstein, Shapiro partner Leonard Garment -- who has represented Attorney General Meese -- forced Ratiner ut in an effort to stymie the suit and shield the Justice Department from Hamilton's allegations. Garment and the firm deny the charges, and Ratiner declines comment on his departure.)
A few months later Dickstein, Shapiro dropped INSLAW. Garment says the firm had satisfied its commitment to take INSLAW up to the trial. By the time the firm pulled out, INSLAW owed $ 464,000 in fees.
With discovery beginning, Hamilton found himself with no trial counsel and no funds to pay one. Richardson, who is not a trial lawyer, says he shopped the case to one D.C. firm, which declined to take it. He didn't even ask his own firm, he says, because there were no litigators at Milbank, Tweed's D.C. office.
Increasingly desperate, Hamilton turned to two friends: Brian O'Neill of Santa Monica, California's seven-lawyer O'Neill & Lysaght and Michael Lightfoot of Los Angeles's seven-lawyer Talcott, Lightfoot, Vandevelde, Woehrle & Sadowski. Both agreed to come east to help with discovery on a contingency basis.
But Hamilton still had no trial counsel. As he had done repeatedly, he consulted Charles Work, one of his closest friends. A former assistant U.S. attorney in the first office Hamilton had computerized and a later a deputy administrator of LEAA, Work had become a litigation partner at the D.C. office of Chicago's McDermott, Will & Emery. He offered to pitch in and recruited his partner Michael Friedlander, plus Philip Kellogg and James Lyons of D.C.'s three-lawyer Kellogg, Williams & Lyons. All worked on contingency.
A SMOKING GUN
Meanwhile Nancy Hamilton had stumbled upon a seemingly innocuous Justice Department document -- a note handwritten by the contracting officer on the PROMIS project, Peter Videnieks: "JR called. Brick talked to Stanton, 'No way 11 -- will be 7.'"
Videnieks's note, dated February 25, 1985, just three weeks after INSLAW had filed for bankruptcy, apparently referred to a conversation with Jack Rugh, assistant to Hamilton's nemesis, Brick Brewer. As INSLAW's lawyers interpreted the note, Rugh told Videnieks that Brewer had directed William Stanton to convert INSLAW's Chapter 11 reorganization to Chapter 7 liquidation. Stanton was the director of the Justice Department's Executive Office for U.S. Trustees, the central administrative office of a then-experimental program of semi-autonomous local trustees who act as fiduciaries for bankruptcies within their regions.
The note Nancy Hamilton uncovered raised a new specter: that Brewer was compromising the impartiality of the U.S. Trustee program in an effort to block INSLAW's reorganization and wipe out the company. As director Stanton would concede in his deposition, he needed support for pending legislation to make the program permanent. That need, Hamilton and his lawyers feared, could make Stanton susceptible to pressure from officials like Brewer.
"This case scared the living daylights out of me," says bankruptcy attorney Docter of Brewer's alleged attempt to interfere with the bankruptcy process. "This is police state stuff. It's just outrageous."
Once again, Hamilton turned to the courts. On February 25, 1987, INSLAW filed an unusual petition with federal bankruptcy judge George Bason, Jr., who was overseeing INSLAW's bankruptcy and the adversary suit. Docter submitted Videniek's note as evidence that "previous efforts to seek a fair and equitable settlement have been obstructed by the behind-the-scenes involvement of the very parties whom INSLAW has accused of misconduct." INSLAW's petition asked for undefined "court assistance to obtain independent handling" of its case.
In his March 11 ruling ordering an evidentiary hearing on the petition, Judge Bason himself offered corroboration of INSLAW's charges. He revealed that in 1985 the U.S. trustee assigned to INSLAW's bankruptcy, William White, had asked the judge to bar White from sharing confidential information about the company with any other department employee. White, it now seemed, had been protecting himself from Justice Department pressure.
Hamilton did not have to rely on such circumstantial evidence for long. For two or three months, Mark Cunniff, executive director of the National Association of Criminal Justice Planners and a friend of the Hamiltons, had been relaying information from a friend at the Executive Office for U.S. Trustees. The friend was deputy director for administration Anthony Pasciuto, who by his own admission did not get along with office director Stanton. Cunniff eventually convinced Pasciuto to meet the Hamiltons for breakfast at D.C.'s Mayflower Hotel on St. Patrick's Day.
That breakfast was a turning point. According to Nancy Hamilton's contemporaneous notes and her later trial testimony, Pasciuto confirmed what had first seemed to be paranoid fantasies: He said that trustee White had confided that in 1985 Stanton had pressured White to convert INSLAW's bankruptcy to Chapter 7 liquidation. Moreover, when White resisted, Stanton tried unsuccessfully to have an assistant from the U.S. Trustes office in New York take over the case and convert it. And, Pasciuto said, Cornelius Blackshear, the U.S. trustee in New York at the time of INSLAW's Chapter 11 filing, knew all about Stanton's scheme.
The Hamiltons left breakfast both shocked and excited. Their suspicions were true -- and now, really for the first time, it seemed that they could prove it.
RELUCTANT WHISTLE-BLOWERS
Hamilton's lawyers set about to corroborate Pasciuto's story. On March 25 they deposed Blackshear, now a federal bankruptcy judge for the Southern District of New York. White, he stated, had told him that Stanton wanted INSLAW liquidated and had pressured White to go along. Blackshear also testified that he had heard rumors from other sources that unnamed people in the Justice Department had an interest in putting INSLAW out of business. The Hamilton team was jubilant.
Their high spirits didn't last. The very next day, in an unusual ex parte affidavit, Blackshear recanted. "I testified that William White had advised me that Tom Stanton had brought pressure on him to convert the INSLAW CASE [TO Chapter Seven]," said Blackshear. After two conversations with White, Blackshear concluded, "I now recall that no such discussion took place."
Blackshear now explains, "After consulting with the people whom the hearsay testimony had come from, I discovered that my recollection was cloudy."
"It was like the world just collapsed around Tony [Pasciuto]," says Cunniff. "he was devastated. He was getting real concerned. He was the guy out in left field."
When Hamilton's lawyers deposed Pasciuto, he conceded that "[White] was angry about . . . the Executive Office [for U.S. Trustees'] interference in INSLAW." But he backed away when probed about Stanton's connection to the INSLAW BANKRUPTCY. "I have to go back and work in this place," he pleaded.
Hamilton's lawyers, however, stayed with their game plan. In May and June, during four days of hearings on INSLAW'S bankruptcy, they argued that the company needed court assistance to ensure the independence of the U.S. trustee handling its case.
Presented with the "No way 11 -- will be 7" note, Rugh testified that it referred only to his opinion of INSLAW's prospects, based on his knowledge of the company's finances. White, who now practices bankruptcy law at Alexandria, Virginia's 160-lawyer Hazel, Thomas, Fiske, Beckhorn & Hanes, denied that Stanton had pressured him to convert INSLAW's case.
Stanton vehemently denied that he wanted INSLAW liquidated. It was solely because of White's inexperience that he tried to bring an assistant trustee down from New York to take over the case, Stanton claimed. With the future of the trustee program at stake, he testified, he "didn't want the case to fail on some administrative error that would make us look bad."
Pasciuto, the Hamiltons' "Deep Throat," testified that he knew of no pressure on White to convert the INSLAW bankruptcy from Chapter 11 to Chapter 7. One of Hamilton's lawyers, Philip Kellogg, reluctantly asked Judge Bason's permission to cross-examine their own witness. In a dramatic exchange, Kellogg confronted Pasciuto with Nancy Hamilton's notes of their Mayflower breakfast. Pasciuto hemmed and hawed. He became so distraught the judge called a brief recess. But Pasciuto did not change his testimony.
VINDICATION
With the government witnesses closing ranks against Hamilton, it was far from certain that Judge Bason would see things Hamilton's way. But on June 12, the judge ruled that the government had indeed tried to force INSLAW into liquidation. He called Stanton's testimony "evasive and unbelievable" and adopted a preliminary ruling in which he had termed Stanton's actions "a clear abuse of authority, utterly improper, and most severely to be condemned and punished." Rugh's testimony, said Judge Bason, was "inherently incredible," and Judge Blackshear's recantation "an honest mistake." As for White, the judge concluded tht he had exercised a "capacity to forget" when he denied the whoel scheme.
Bason forbade anyone from the Executive Office for U.S. Trustees or the Justice Department from contacting INSLAW's trustee about the case and invited Attorney General Meese to appoint someone outside Justice to review INSLAW's dispute with the department. The judge awarded INSLAW $ 1,000 in compensatory damages, plus legal fees associated with the hearing, which Hamilton estimates at $ 250,000.
According to a Justice spokesperson, the department has not yet decided whether to act on Bason's suggestion for an independent review. However, in July the department's Office of Professional Responsibility initiated an investigation of Brewer.
New York bankruptcy judge Blackshear takes issue with Bason's vehemence, point out that only the judge overseeing a bankruptcy has the power to convert the case. "If everything the parties alleged about Tom Stanton is true, you still have a 'So what?'" says Blackshear. "The trustee cannot convert anything." (Responds one New York bankruptcy partner: "the U.S. trustee is given in most cases some real deference. . . . He's there as an impartial administrator.")
GOING AFTER BREWER
The bankruptcy hearings had brought Hamilton and his lawyers a taste of victory, but only on the narrow issue of the trustee program. Justice still declined to settle the pending $ 30 million suit.
Judge Bason decided to split the litigation into two phases. The first would focus on Brewer's alleged bias, Justice's alleged misconduct in not removing him from the PROMIS project, and the government's alleged theft of INSLAW's proprietary software. The second (as yet unscheduled) would examine INSLAW's complaint that Justice filed a sham counterclaim against ther company, engaged in bad faith negotiations, and interfered with INSLAW's business development.
In late July and early August, INSLAW attorney Michael Friedlander outlined to the judge the story Hamilton had told Justice officials for so long with so little success -- a story of government conniving and manipulation orchestrated by Brick Brewer and, in Elliot Richardson's words, "complemented and allowed to run its course by ill will at the higher level," meaning former deputy attorney general Jensen.
The government lawyers responded that the case was a simple contract dispute. Although there were certainly differences of opinion between the parties, they claimed, there was no malice or misconduct.
The high point of the trial came on July 29 when the alleged villain, Brick Brewer, took the stand. Government attorney Sandra Spooner, deputy director of commercial litigation in the civil division, zeroed in on Hamilton's basic premise: that Brewer held a grudge because he had been fired as general counsel of INSLAW's not-for-profit predecessor. Brewer testified that he had not been fired but had decided to leave.
In his cross-examination, McDermott, Will's Michael Friedlander reminded Brewer of his deposition testimony that Hamilton had "a very, very distorted view of reality" that was "mentally defective," then asked whether Brewer had disclosed this opinion when he was interviewed for the job that would put him in control of the INSLAW project. No, Brewer responded. "I saw my views about Mr. Hamilton as being totally irrelevant," he said.
Friedlander confronted Brewer with notes from an April 1982 meeting attended by Brewer, his deputy Rugh, and contracting officer Videnieks that read, in part, "Termination for convenience discussed." The subject, Friedlander contended, was the month-old PROMIS contract. Brewer testified that he did not recall the meeting and asserted that considering termination so early in teh contract period was "ludicrous." (Both Rugh and Videnieks testified that they could not recall the meeting.)
Then Friedlander asked Brewer about the department's use of PROMIS following the ned of INSLAW's contract in 1985. Brewer admitted that Justice had subsequently installed the hybrid in U.S. Attorney's Offices not covered by the contract. The decision was made willingly? Friedlander asked. "Yes." Knowingly? "Yes." Intentionally? "Yes."
Brewer stood firm. He testified that the department had no obligation to negotiate with INSLAW over the hybrid. The software, he insisted, had been developed with government funds and was thus in the public domain.
BASON'S BLAST
Judge Bason rendered his verdict on September 28 in a packed D.C. courtroom. Speaking in soft, measured tones that at times seemed to drip with sarcasm, Bason likened the Justice Department's behaviour to that of a bawling, spoiled child. There was suppressed laughter from spectators. He continued sternly, comprising Justice to a shyster who drives off with a car dealer's loaner car and never returns.
The department, Bason ruled, had "engaged in an outrageous, deceitful, fraudulent game of cat and mouse, demonstrating contempt for both the law and any principle of fair dealing." Justice "took, converted, stole INSLAW's enhanced PROMIS by trickery, fraud, deceit," he said, and its actions wre "willful, wanton, deceitful."
Bason agreed that Hamilton had fired Brewer; that Brewer knew it ("It's not the sort of thing that someone can have a misunderstanding about"); and that Brewer acted on his "lust for revenge," using Rugh and Videnieks as writing accomplices. Brewer's testimony, said Bason, was "entirely colored by this intense bias and prejudice."
Contracting officer Videnieks and Brewer's assistant, Rugh, the judge decided, were "infected [by Brewer's] poisonous attitude" and by their own desires for advancement.
Judge Bason chastised Justice for its unresponsiveness to Hamilton's repeated requests for an investigation of Brewer. "A very strange thing happened at the Department of Justice in response to these complaints," said Bason. "Absolutely nothing. . . . The investigation, according to the government officials' own testimony, consisted solely of asking Mr. Brewer, 'Were you fired? Are you biased?' It is as though they were to go up to any person charged with a crime on the street and say, 'Did you steal this particular item?' or 'Did you happen to kill so-and-so?' and when he says, 'No," that is the end of the investigation. I can't imagine that the Justice Department would solve any crimes if that is the way investigations were normally conducted."
"The failure to even begin to investigate," remarked Bason, constituted "an institutional decision by the Department of Justice consciously made at the highest level simply to ignore serious questions of ethical . . . impropriety made repeatedly by persons of unquestioned probity and integrity."
Judge Bason blasted McWhorter, Brewer's boss and friend, for having "said 'I don't remember' or 'I don't recall' or 'I don't know' something like one hundred forty-seven times" in response to deposition questions about INSLAW; he called Tyson's glowing description of Brewer's work on the INSLAW contract "so ludicrous there is no way I can believe anything the man ha sto say";
and he excoriated management division general counsel Sposato for "what can perhaps charitably be described as willful blindness to the obvious."
But the judge never singled out the senior officials to whom Elliot Richardson had complained, and he made only one remark abut former deputy attorney general Jensen, who had been named in INSLAW's complaint. In his deposition, siad Bason, Jensen "appeared to acknowledge the general principle" that it is a "bad idea" for the government to hire the former employee of a government contractor to supervise that company's government contract. But, Bason concluded, "I didn't get any hint in his testimony that he recognized that there was any possible applicability of the general principle to the case of Mr. Brewer and INSLAW."
The judge ordered Justice to pay INSLAW for the use of its software, the amont to be determined at a later hearing. (Hamilton claims standard licenses on the software will cost Justice about $ 5.4 million.)
The judge also barred Brewer, Rugh, and Videnieks from any further contact with INSLAW or the PROMIS project, awarded INSLAW legal fees, which Hamilton estimates at more than $ 1.5 million, and granted INSLAW sole ownership of the hybrid software.
Justice attorney Dean Cooper declines comment on the verdit. Amelia Brown, a Justice spokesperson, promises an appeal. "We feel that the department's conduct in this matter was lawful and proper," she says.
Brewer, in a post-verdict statement to the press, commented, "INSLAW has succeeded through a scheme of personal attacks and slander to avoid scrutiny of their performance. The ultimate losers are the taxpayers of the United States." At press time brewer remains an associate director of the Executive Office for U.S. Attorneys.
FILLING IN THE GAPS?
Unlike an Agatha Christie novel in which the scattered clues eventually fit together and the culprits are exposed, parts ot he INSLAW saga are still shrouded in mystery. Hamilton and his attorneys have unearthed no direct links between Brewer and higher-level officials. And no one at Justice has been willing to address the issue of the department's unresponsiveness to Hamilton's requests for a serious investigation of Brewer's alleged bias.
"As a former seasoned bureaucrat," says Hamilton's ex-lawyer Ratiner, a veteran of 15 years in the government, "it's very easy for me to understand how you could get into this kind of situation. It's difficult for me to understand how -- once officials were informed of it -- it wasn't stopped."
Hamilton is particularly puzzled. While he agrees with Judge Bason that Brewer was the linchpin of the conspiracy, Hamilton doesn't understand the indifference he and his lawyers encountered from high-level Justice officials, including Jensen. Somehow the checks and balances broke down. Hamilton says he is still searching for evidence of a wider conspiracy.
"It's a bizarre story," he admits. "I'm sure I would take it with a grain of slt if I were listening to it. The federal government just isn't supposed to work like that."