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It’s not every day a lawyer gets to slap around the Justice Department. But Los Angeles white-collar criminal defense attorney Mark C. Holscher, an ex-federal prosecutor best known for his 1995 conviction of “Hollywood Madam” Heidi Fleiss, spent his summer doing just that. After some false starts, his six-lawyer team laid the foundation for what one observer called a “classic” espionage defense, smothering the bumbling federal prosecution of nuclear weapons scientist Wen Ho Lee. A partner at O’Melveny & Myers in Los Angeles, Holscher built a compelling case that the so-called nuclear crown jewels, copied by Lee when he worked at the Los Alamos National Laboratory in New Mexico, were in fact widely available in the public domain. To prove his case, he had his co-counsel and former Williams & Connolly lawyer Jon D. Cline wage a war of attrition to gain access to classified material. “If the government wants to prosecute you, they have to give you adequate access, they have to declassify the information or dismiss the charges,” Holscher explains from his Los Angeles office. “They wanted to do a trial without introducing any of the files.” Since his client’s indictment last December, Holscher has forced the government to admit there was no proof that Lee spied for China, convinced a judge that his client may have been the subject of selective prosecution and even got a half-hearted apology from the New York Times, whose early reporting, both sides agree, contributed to the political frenzy around the case. The defense team, analyzing its tactical successes in conversations with The National Law Journal, agrees that it was on Aug. 16, when Holscher cornered the case’s lead FBI agent in open court, that the government’s case unraveled. But the team says that less visible maneuvers were also crucial to their success. A CASE LONG IN COMING Last Dec. 10, Lee was charged with 59 counts of unlawfully gathering national defense information with intent “to injure the United States” and “secure an advantage to a foreign nation” for having downloaded 19 files of secret weapons data onto 10 computer tapes in 1993 and 1994. On Sept. 13, all but count 57, dealing with restricted computer-language data that he downloaded, were dropped. As part of his plea agreement, he was sentenced to time served. It was 1988 when the CIA was first made aware that China may have had data on the W-88, a miniature U.S. nuclear warhead. Over the next seven years, the U.S. Department of Energy, the FBI and Congress investigated. Having traveled to China twice while employed at Los Alamos, Lee, 60, a native of Taiwan, became a suspect. After a March 6, 1999, story by the New York Times that all but named him, FBI agents pulled him aside for questioning. He was fired the next day. Through a friend of his daughter, he was put in touch with Holscher, whose firm agreed to take the case for free. Key lawyers whom Holscher brought on were Cline, now at Albuquerque, N.M.’s Freedman Boyd Daniels Hollander Goldberg & Cline, to focus on the classified material issues; Cline’s partner Nancy Hollander, an ex-president of the National Association of Criminal Defense Lawyers, who handled suppression issues; and O’Melveny’s Daniel H. Bookin, who consulted on strategy and negotiations. The team’s synergy, says Holscher, was the most important aspect of the defense. Over the next nine months, they would meet with prosecutors, trying to persuade them not to indict Lee while also asking for a leak investigation, given the media scrutiny of their client. Lee’s civil lawyer, Brian A. Sun of Santa Monica, Calif.’s O’Neill, Lysaght & Sun has since sued the government under the Privacy Act, alleging illegal leaks about Lee’s employment and personal background. Discovery in the civil suit is tentatively set to begin next month. After a final defense offer to cooperate, prosecutors indicted Lee on Dec. 10. “He had just been taken from his home and was sitting in a huge courtroom,” says Hollander of Lee’s first court appearance. “He had a little bag packed. Nobody explained it to him. When he got up to come over to me, suddenly there were marshals everywhere. He realized then what was happening.” At Lee’s first detention hearing, on Dec. 13, a magistrate denied him bail. During a Dec. 27 hearing on an appeal of that order, FBI Agent Robert Messemer sought to emphasize Lee’s untrustworthiness by stating that the scientist had deceived a co-worker as to why he was downloading classified materials, saying Mr. Lee asked the co-worker if he could download “a resum�.” The testimony, Judge James A. Parker later said, was crucial to his decision to keep Lee in solitary confinement for months. In the spring, the defense team unsuccessfully challenged the constitutionality of the Classified Information Protection Act (CIPA), a law they would later use to their supreme advantage, and sought to suppress evidence obtained during an April 10 search of Lee’s home. Their first break came with the May 25 announcement that George A. Stamboulidis would replace Robert Gorence as lead prosecutor, says a lawyer close to the case. “Gorence had been in the case from the beginning, and Stamboulidis was coming in cold, and this is extraordinarily complicated stuff,” the lawyer says. “The defense really shot ahead … in terms of preparation.” Agreeing that the change was ill-advised, a Justice official who requested anonymity adds that the defense’s May 10 request for a bill of particulars, in which they demanded that the government reveal which foreign nation Lee “intended to benefit,” began to shift the case in the defense’s favor. “I think there was a real turning point when the government talked about Australia,” laughed Holscher, referring to the government’s July 5 response to the bill of particulars in which they cited six friendly nations. Another defense team member put it bluntly: “A case that started with ‘He gave the W-88 to China’ [and] devolved to him thinking of applying for a job in Switzerland showed the case’s strength.” Judge Parker handed the defense another victory on July 13 when he granted in part their motion for discovery related to alleged selective prosecution. “It’s very unusual to be allowed discovery on this issue,” said Bookin, a former federal prosecutor. “Two things made this case different: There were officials in the government saying [Lee] was targeted because of his ethnicity [and] the disparity between the way Dr. Lee was treated and others who had been accused of similar things.” ‘CLASSIC’ ESPIONAGE STRATEGY But the “classic” strategy underlying the entire case as it was employed by the defense, says espionage defense expert Jonathan Turley of George Washington University Law School, was Cline’s use of CIPA. The statute, which governs access to secret materials, allows defense lawyers to avoid government abuse of classified status when seeking evidence while protecting the government from “graymail,” whereby defense lawyers seek to upend a prosecution by seeking unnecessary access — a tactic that FBI Director Louis Freeh told Congress on Sept. 26 was one reason why he agreed to Lee’s plea bargain. “We said to the government, ‘If you’re claiming that Dr. Lee had the intent to injure the U.S. because they were the crown jewels, we now can show the judge that there is a good faith dispute to the contents of the tapes,’ ” says Holscher, citing the testimony of three experts, including former Los Alamos counterintelligence chief Robert Vrooman, who said there was not “ one shred” of evidence China gained technology from U.S. labs. Holscher’s effort culminated with Parker’s grant of a hearing on the renewed pretrial-release motion. It was at that hearing that he slammed the door. “There’s no question that the negotiations really started when I completed the examination of Messemer,” Holscher says. In a packed courtroom in Albuquerque’s federal courthouse, Holscher, standing arms-crossed at the lectern, took Messemer through a series of questions leading to the inevitable: that the agent had falsely testified that Lee was deceptive about downloading classified files. “The agent saw the train wreck coming, but he realized he had no choice but to go to it,” says one lawyer who was in the audience. “People there … realized how important it was to have an FBI agent, brick-red and trying to be calm, retracting his statements in court.” Although one prosecutor said Parker is so impassive he “wouldn’t want to play poker with him,” another lawyer close to the case said of Messemer’s testimony that “Judge Parker was extraordinarily upset because he had been misled, and that had led him to do something he felt bad about doing.” The defense lawyers say that it was the Aug. 16 examination by Holscher, Parker’s Aug. 24 order to release Lee, and the threat of being forced to reveal possibly damning materials on selective prosecution that brought the government to the bargaining table. But despite his victory, Holscher remains wistful about the case. “They had spent all those years looking at him, turning his life upside down,” he says of Lee’s ordeal. “Just looking through the rear-view mirror, in December, if I could have had a deal, I would have walked on burning coals to go back.”

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