Defense lawyers for the former Archer Daniels Midland Co. executives accused of criminal price fixing are employing an unusually aggressive tactic in trying to get undercover tapes completely thrown out of court, legal experts said Monday.
But whether that strategy has any chance of working is far from a sure thing, they said.
As reported Monday, sealed court documents obtained by the Tribune in the federal antitrust case against current and former ADM executives raise questions about the legality of the 200-plus tapes undercover mole Mark E. Whitacre made while he was an executive at the Decatur-based firm.
Using FBI files as the basis for much of their argument, lawyers for Michael D. Andreas and Terrance S. Wilson argue that Whitacre was so mentally unstable between November 1992 and June 1995 that he could not validly consent to being tape-recorded himself.
Andreas, vice chairman of ADM, is on a paid leave while he awaits trial next May.
Wilson recently retired as ADM division president for corn processing.
Complaining of depression and suicidal feelings, Whitacre tried to free himself from his involvement in the investigation after only two weeks, the filing says.
The defense cites federal law saying that one person involved in a conversation that is secretly taped must give consent.
“It’s an imaginative and aggressive strategy for the defense to use,” said Steve Kowal, a Chicago lawyer who formerly prosecuted antitrust cases for the government.
“Based on what the documents appear to say, they have more support than you would ordinarily have when you argue that a cooperating party is not acting of his own free will,” Kowal said.
In U.S. District Court on Monday, John Bray, who represents Andreas, told Judge Blanche M. Manning that if she grants an evidentiary hearing on this motion to suppress the tapes, he would call as many as a dozen witnesses.
Many of the witnesses would be FBI personnel, he said.
“If you can get that kind of hearing, you have a shot of examining the FBI agents when there’s not a jury there. It’s like a dress rehearsal for trial,” Kowal said. “Because in a criminal case you can’t take depositions, you don’t know how they’re going to answer questions at trial. This way you lock them into a story.”
Interim U.S. Atty. Scott Lassar said in court Monday that the government will file its full response to the motion to suppress the tapes.
The government would want the judge to dismiss the motion without such a hearing, experts said.
“The government will say that the FBI has law enforcement authority beyond the statute” that specifies the conditions for legal taping, predicted Paul Robinson, a law professor at Northwestern University.
“To say that this official obviously had sufficient mental capacity to do his job in the company, but was mentally incapable to consent to the taping is far-fetched,” Robinson scoffed. “I’ve never heard of anyone succeeding with a strategy like that.”
But another law professor, Leonard L. Cavise of DePaul University, said these arguments raise bigger issues.
“Most of these kinds of tapings are coerced in a sense, because the people doing it for the FBI are under tremendous pressure,” he said. “They are all facing time of their own. No one is really doing it voluntarily.
“The FBI can say, `Sure we knew he was depressed, but his depression was not enough to (invalidate) his consent.’
“But the policy implication is that the FBI should be forced to respect the wishes of anyone who voluntarily cooperates with them,” Cavise said. “When a person comes in and says, `I don’t want to do this anymore,’ the FBI should stop.”
Lawyers for Andreas and Wilson also argued that the FBI failed to carefully supervise Whitacre during the investigation.
According to the court filing, he was sent out to record whenever he saw fit, and the tapes were often left in his possession for long periods of time, the court filing says.
“I am very surprised to hear that the FBI would have these problems with these tapes,” Cavise said.
“To find out that they can’t even maintain a chain of custody of tapes, I shouldn’t be surprised. But I am surprised.”
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