DOJ Interim Summation Depresses Judge

April 21, 2005 3:15 pm by Gene Borio

Apr 21, 2005, 10:57 PM

If I know anything about Judge Kessler, who is not exactly Judge Poker-Face, and if I know anything about body language, it’s that when you see Judge Kessler holding her head up with both hands, you know something is going terribly wrong, and you’d better find a way to change your strategy or line of argument fast.

This seemed to happen today during the DOJ’s Interim Summation, which focused on testimony since the last interim summation.

And it may well have been a fine, shortened summation of highlights of several weeks’ testimony in two main areas–document destruction and the marketing of low-yield cigarettes. But useful to the judge?

Mr. Schwind addressed the Australian document destruction issue, and while interesting to me, as some of it dealt with the sealed testimony of Mr. Gulson, it did not seem informative to Judge Kessler. When Mr. Schwind said, “the common thread through everything is the lawyers, the lawyers, the lawyers,” Judge Kessler said, tired and dismissive, “I know all that.”

Mr. Brody dealt with the low-tar issue, and gave a strong consolidation of the DOJ’s evidence, but again, I don’t know if it was helpful.

By the time he addressed the difference between Individual Smoker Variation–which is what the industry told the FTC about–and actual Compensation for nicotine–compensation that is specifically driven by the smoker’s need for nicotine–which the industry knew about but did not tell the FTC about–Judge Kessler professed not to understand the distinction he was making. It did not seem a difficult concept, but perhaps she was already too tired–or depressed.

Mr. Brody then wound up talking about the remedies witnesses and the testimony they would provide.

As Judge Kessler called it a day, she seemed de-energized and discouraged. I felt DOJ had not given her what she needed–the evidence and reasoning to legally find against the industry in the very areas the Defense addressed in its argument this morning,ie:

a) overall RICO liability, and

b) strong evidence of the likelihood of future wrongdoing.

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