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Was Former Drummond Exec David Roberson's Guilty Verdict Driven Largely by Trial Court's Improper Decision to Try Him Jointly with Balch & Bingham Lawyer?

Posted on the 08 June 2021 by Rogershuler @RogerShuler

Was former Drummond exec David Roberson's guilty verdict driven largely by trial court's improper decision to try him jointly with Balch & Bingham lawyer?

David Roberson


Was former Drummond Company executive David Roberson found guilty in the North Birmingham Superfund bribery case because he was tried jointly with a lawyer from Balch & Bingham -- the very lawyer who had falsely assured Roberson his actions, and those of his company, were fine and legal?

That seems to be the primary question raised by an opinion from the U.S. 11th Circuit Court of Appeals, upholding the convictions of Roberson and Balch attorney Joel Gilbert. The appellate ruling makes clear that Roberson's attorneys timely moved to sever the two trials, but District Judge Abdul Kallon -- apparently in the interest of "judicial economy" -- ruled for joinder. The National Association of Criminal Defense Lawyers (NACDL) filed an amicus brief stating that trials should be conducted separately when one defendant stands to be prejudiced by a joint proceeding, especially where an attorney and client are tried together.

It appears the 11th Circuit largely ignored the amicus brief in upholding Roberson's conviction. (More on the NACDL brief in an upcoming post.) But the nagging question remains: Was a man found guilty because of a joint trial, when he likely would have been acquitted if he had been tried alone? Is "judicial economy" more important than dispensing justice, than getting it right? Those seem to be the kind of troubling questions that produce mixed opinions in legal circles and probably merit en banc review of the full 11th Circuit -- and perhaps, if necessary, clarification from the U.S. Supreme Court. Here's how the 11th Circuit framed the issue in its 37-page opinion:

Roberson . . . argues that the district court should have severed the trial pursuant to Federal Rule of Criminal Procedure 14(a), and failure to do so led to events requiring a new trial. Roberson states that because of joinder he was unable to properly present a reliance on the advice-of-counsel defense. Roberson argues that certain evidence was excluded at trial because it inculpated Gilbert, even though that evidence supported Roberson’s defense that he relied on counsel, Gilbert, in believing his actions were legal. Specifically, the trial court excluded a portion of an FBI agent’s written summary of Roberson’s interview with the FBI in which Roberson states that he had checked with Gilbert to ensure “there was no problem with what they were doing.”

Let's take a closer look at the evidence that was excluded, because Roberson was jointly tried with Gilbert, compared to FBI evidence the jury was allowed to see. First, here is the evidence that was allowed:

The full passage at issue, with the portions excluded at trial underlined, states:After the Hubbard trial, Roberson considered what they were doing, i.e., contracting with a state representative, in light of the ethics law but determined that the area targeted by the campaign was not in Robinson’s district. Roberson stated that they (Drummond) have always been very careful, and he (Roberson) has a reputation to maintain. Roberson had a conversation with Gilbert about ethics considerations.

Here is the underlined portion that was kept from the jury:

Roberson had a conversation with Gilbert about ethics considerations. Roberson wanted to know if it was a problem for him (Roberson) to be associated with the effort because he was a lobbyist. Gilbert later told Roberson that he checked with Greg Butrus and Chad Pilcher at Balch, and there was no problem with what they were doing.

What are the legal issues in play here? This is how the 11th Circuit explains them:

Roberson claims this exculpatory evidence was critically important to his advice-of-counsel defense. Roberson also argues that the exclusion of portions of the FBI interview distorted the meaning conveyed by the admitted portions and rejects that any other evidence presented at trial was curative of this omission as the government undermined that evidence in its closing . . . . Although Roberson raised the motion to sever early in the district court’s proceedings, we focus first on the district court’s later denial of a motion for a new trial because if the district court was correct in denying the motion for a new trial then “its earlier rulings not to sever–when it had even less evidence of potential prejudice before it–were necessarily correct.” Blankenship, 382 F.3d at 1121–22. In evaluating whether a motion for a new trial should have been granted, first the court must assess whether there is a risk of prejudice. See Zafiro v. United States, 506 U.S. 534, 538–40 (1993). Next the court must ascertain whether severance was the necessary remedy, as “[t ]here are only two circumstances in which severance is the only permissible remedy[;]” (1) when “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants,” or (2) to “prevent the jury from making a reliable judgment about guilt or innocence.”Blankenship, 382 F.3d at 1122–23 (quoting Zafiro, 506 U.S. at 539).

That raises three key questions: 

(1) Was there a "serious risk" of prejudice from Roberson being tried with Gilbert? Answer: Of course. Even the 11th Circuit goes on to admit as much:

(2) Was there a serious risk that a joint trial would compromise a specifiic trial right of one of the defendants (in this case, Roberson)? You can read the underlined passage above, which was excluded from the jury, and see it did, in fact, ruin Roberson's advice-of-counsel defense. You also can see that Roberson's attorneys were correct when they argued the allowed passage was pretty much meaningless when not accompanied by the disallowed passage. Heck, the allowed passage contains a reference to "Hubbard," and some jurors might not even have known what that meant. The disallowed passage goes directly to Roberson's question to Gilbert about actions he and Drummond were taking, were they legal -- but the jury never heard it, wiping out the advice-of-counsel defense that likely would have led to a Roberson acquittal.

(3) Was the jury prevented from making a reliable judgment about guilt or innocence? Well, the jury was prevented from hearing a key portion of Roberson's defense, so the answer clearly is yes.

How did that happen? The 11th Circuit explains, sort of:

Roberson argues that pursuant to the rule of completeness, but for the fact that Gilbert was his co-defendant, the omitted passage would have been read into evidence.See FED.R.EVID. 106. Roberson claims this exculpatory evidence was critically important to his advice-of-counsel defense. . . .  

The Confrontation Clause prohibits the admission of a non-testifying defendant’s confession if that confession directly inculpates another defendant. See Bruton v. United States, 391 U.S. 123, 126 (1968). The district court redacted the portions of the FBI’s Roberson interview at issue pursuant to Bruton

Do the three issues and questions noted above, coming straight from the 11th Circuit's opinion, override Bruton?    And what about that rather important issue of prejudice? The 11th Circuit seems to admit it                 existed, because of the joint trials, but it goes into a litany of what sound like excuses to defend        Kallon's actions and ultimately responds with a collective shrug:

The only evidence Roberson claims he was prevented from introducing at trial were the redacted portions of the FBI report. Although this evidence lends additional support to Roberson’s advice-of-counsel defense, its exclusion is not misleading with respect to the portion that was admitted, given the other evidence presented, and essentially was cumulative. 

Translation: Yes, the advice-of-counsel evidence was important, but its exclusion was not THAT big a deal.

In sum, the exclusion was not so prejudicial as to compromise Roberson’s ability to present his defense or deny him a fair trial.

Translation: Yes, Roberson was prejudiced, but a little bit of prejudice is fine in a federal criminal case. 

The 11th Circuit's casual approach to exclusion of a key part to Roberson's defense runs counter to the trial court's jury instruction, as noted in Footnote 27 of the 11th Circuit's ruling:

As the jury instructions noted, “[e]vidence that a defendant in good faith followed the advice of counsel would be inconsistent with the unlawful intent required for each charge in this case.”

In everyday language: If Roberson had not been tried with Gilbert, he would have been able to raise a complete advice-of-counsel defense, and that likely would have shown he did not have the unlawful intent required for a criminal conviction.

The Roberson case teaches, essentially, that we now have a criminal "justice" system that tolerates prejudice, that "judicial economy" trumps fundamental justice, and exclusion of a critical defense is perfectly fine.

Have we really sunk that low? Will Americans continue to tolerate this in courts that are taxpayer funded, but largely unscrutinized?

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