To believe federal prosecutors, Charles Daum was a win-at-any-cost defense lawyer, willing to leap over ethical rules — even commit a crime — to keep a client out of prison.
The U.S. Justice Department last year charged Washington attorney Daum and two private defense investigators with carrying out a scheme to dupe jurors in a federal drug case through staged photos and perjured testimony that pinned blame on another person.
Last week, as prosecutors began playing muffled, obscenity-laced jailhouse recorded calls that are the centerpiece in the case against Daum, another portrait of the longtime defense solo emerged — that he was a victim of his own client. A key question in the case: Did Daum’s client manipulate him?
The rare prosecution of a lawyer over work defending a client has drawn intense interest in the criminal defense bar in Washington. Lawyers dropped in and out of the bench trial last week, catching glimpses of Daum, tall and bespectacled, his hands often clasped together in front of him, as a defendant, not defense counsel.
Daum’s attorney, David Schertler of Washington’s Schertler & Onorato, described him as a zealous advocate for clients, aggressively fighting government charges but not crossing any lines.
Daum, Schertler said, had an obligation to present the evidence his client provided to him. The client, a man named Delante White, blamed the drugs on a relative. Building the defense, Daum, a solo practitioner, showed jurors a photo of White’s brother with crack cocaine and a lease indicating his client did not live at the apartment the authorities raided. Daum, Schertler asserted in his opening statement on May 7, had no reason to believe the evidence was phony.
Prosecutors didn’t know the evidence was fake, either. A team of DOJ lawyers, suspicious about the authenticity of certain photos, reviewed the prosecution and soon determined that witnesses had lied on the stand. Those witnesses, including relatives of White’s, admitted being a part of the fabrication plot. The witnesses blamed Daum.
After a mistrial in the underlying drug case, White and three other people, including his two brothers, were charged for their roles in the evidence-manufacturing plot, which unfolded in 2008 in U.S. District Court for the District of Columbia. The jury voted, 11-1, to convict White, who faced a potential 20-year prison sentence.
White and the others cooperated with prosecutors, telling them that Daum and the investigators, Daaiyah and Iman Pasha, developed and directed the evidence-fabrication scheme.
Schertler’s defense is simple: White and the cooperators are lying, framing Daum and the Pashas to curry favor with prosecutors for leniency. “What happened is that they got caught,” Schertler, a longtime former assistant U.S. attorney in Washington, told U.S. District Judge Gladys Kessler. “As one of my colleagues aptly said, ‘Every defense attorney is one client away from being Mr. Daum.’ “
Justice Department trial attorney Tritia Yuen told Kessler that White and the fellow conspirators lacked the legal sophistication and organization to create and carry out the scheme. Prosecutors discovered the plot after the mistrial in White’s drug case.
Daum, Yuen said in her opening remarks, picked out the location for the staged photos to avoid a potential conflict with a government witness, a relative of White’s who is now deceased. Yuen noted that Daum, 65, has practiced law in the Washington metropolitan area for more than 30 years.
At the heart of the government’s case are thousands of recorded phone calls in which White, jailed during the alleged conspiracy, spoke in code to relatives and friends about elements of the plot. Daum, Yuen said, is “the lawyer” who is mentioned on the recordings.
One of Daum’s brothers, Jerome, testified last week that he agreed to take the fall for his brother’s drugs because Daum told him he wouldn’t get in trouble. Jerome White posed for a photograph in which he is seen cutting up a bar of soap, a prop for cocaine.
“Mr. Daum told us we were going to take some pictures,” Jerome White said on the witness stand. He said he and his brother’s girlfriend met in Daum’s law office four times, going over details of what Daum called the “game plan.” The scheme, White said, was rooted in photographs that featured items the authorities had earlier seized from Delante White.
Schertler in court dismissed the power and seeming credibility of the recorded phone calls, saying that Daum never made any incriminating statements. “When you listen to these phone calls, I think you will find them shocking,” Schertler said last week at trial. “What comes out clear as a bell, these people are willing to do anything and say anything to help themselves. Help themselves sell drugs on the street. Help themselves cheat other people, lie about other people.”
Daum’s lawyers contend that prosecutors have failed to offer a motive to explain why a veteran defense lawyer would risk his livelihood and potential freedom for the several thousand dollars he received in representing White.
But prosecutors say money is exactly the point: Daum wanted to squeeze as much cash from Delante White that he could.
Bolstering the case, prosecutors won a key ruling in March that allowed the government to present evidence of two other alleged unethical acts involving Daum.
Donnell Turner, a DOJ narcotics section trial attorney, said in court papers that Daum falsely got a witness to recant in a murder case in D.C. Superior Court and that Daum misrepresented the source of another client’s money. (Schertler disputes that Daum ran afoul of professional rules in either case.)
For the government, however, the Daum prosecution hasn’t been smooth. Prosecutors in recent weeks drew the ire of Kessler over whether the government violated its own obligations to turn over favorable information to Daum’s lawyers and the attorneys for the Pashas, including Cozen O’Connor partner Bernard Grimm.
Kessler on April 19 found the government unfairly held onto beneficial information about a witness, whose statements, the judge said, undercut the prosecution theory of the case. The witness suggested that a third, unidentified person was involved in carrying out the effort to stage photographs.
In a court filing on April 30, Turner apologized for what he called an “oversight” in not providing the witness information sooner. “The government failed (mistakenly, but not in bad faith) to adhere to those policies, and it regrets that failure,” Turner said. The government has asked Kessler to reconsider her determination that DOJ ran afoul of ethical obligations. A decision is pending.
One longtime defense lawyer, Manuel Retureta, who is following the Daum trial, said all attorneys have a “duty and ethical obligation as officers of the court to investigate and do their best” to ensure evidence is accurate and true.
“It is fitting that the case is being tried to a judge, as there is no higher officer of a court to decide whether Mr. Daum was the victim of one client, or a willing participant in misconduct,” Retureta of Washington’s Retureta & Wassem said.
Mike Scarcella can be contacted at email@example.com.