Frank Parlato
Prosecutors in the Spotlight
You have to wonder about these prosecutors.
The prosecution team of Assistant US Attorneys Gillian Kassner, Jonathan Siegel, Devon Lash and Kayla Bensing of the US Attorney’s Office for the Eastern District of New York may have hit a snag in their case against Nicole Daedone and Rachel Cherwitz.
Attorneys for Daedone and Cherwitz filed a letter with Judge Diane Gujarati last week seeking to dismiss the case because prosecutors illegally used an attorney-client privileged document to tailor the unusual charge they brought against the defendants.
The case was already peculiar, since it marks the first time in US legal history that the federal government charged anyone with forced labor conspiracy without forced labor or similar substantive crime.
The indictment alleges Daedone and Cherwitz conspired for 12 years to force people to labor. Prosecutors could not sustain forced labor charges because they could not produce a single instance where the women forced anyone to labor.
In bringing the unique standalone forced labor conspiracy charge, prosecutors may have had to cheat a little to get their indictment. Sadly, they got caught.
The Privileged Document
In a letter to the Brooklyn federal court, attorneys for Cherwitz and Daedone claim prosecutors had illegal access to a privileged document, which they ineptly or deliberately mishandled, and in the process may have embarrassingly botched the entire case.
Defense attorneys, Jennifer Bonjean and Duncan Levin, told Judge Gujarati they will seek dismissal of the charge.
In an evident gesture that she takes the matter seriously, Judge Gujarati ordered the prosecution team to respond to the serious allegation of illegally using an attorney-client privileged document by Wednesday – giving them just three business days to respond.
But the judge is not alone in taking the matter seriously.
Attorney-Client Privilege
Attorney-client privilege is a fundamental legal right in the United States designed to protect the confidentiality of communications between a lawyer and their client. Rule 501 of the Federal Rules of Evidence acknowledges attorney-client privilege as a recognized legal right, worthy of protection in every US court in the land.
Attorney-client privilege plays a foundational role in maintaining the integrity and fairness of judicial proceedings, something that every first year law school student knows.
Cherwitz and Daedone said prosecutors had a document marked at the top of every page “attorney client privilege: confidential and privileged,” for 30 months.
Mishandling of Privileged Material
According to the lawyers for the defendants, the prosecutors extensively used the privileged document.
“Significantly, material in this document is directly reflected in the vast majority of the indictment,” the defense letter reads. “Some sections of the indictment track it word for word.”
Daedone and Cherwitz claim the document was “pilfered” from their company.
When they learned the prosecution had the privileged document, Cherwitz and Daedone’s attorneys emailed the prosecutors, stating their concern.
An email chain shows Assistant US Attorney Gillian Kassner’s astounding response: “We are looking into this and will be in touch. In the meantime, I can confirm members of the prosecution team will not have access to this document.”
The Grammar of Access
Let me make a point of grammar here.
AUSA Kassner writes that prosecutors “will not” have access to this document.
The operative words are “will not.”
WILL NOT HAVE ACCESS
Tense: Future tense.
Meaning: This phrase indicates they will be denied access in the future.
Structure: “will” (auxiliary verb) + “not” (negative particle) + “have” (base form of the verb) + “access” (noun).
AUSA Kassner did not write, “They did not have access.”
DID NOT HAVE ACCESS
Tense: Past tense.
Meaning: This phrase indicates that they were denied access at some time in the past.
Structure: “did” (auxiliary verb in the past tense) + “not” (negative particle) + “have” (base form of the verb) + “access” (noun).
Future vs. Past:
“Will not have access” refers to a future event, while “did not have access” refers to something that happened in the past.
Auxiliary Verb: The future tense uses “will,” whereas the past tense uses “did.”
These little grammatical differences allow you to observe how clever the prosecutors are about when the access is or will be unavailable to the prosecutors – but they do not deny they had the document.
The Mishap
The truth is that the prosecutors do not need access anymore, because they already had access to the document for over a year and a half before filing their indictment. This may explain why, according to the defense, the language in the indictment mirrors the language in the stolen privileged document, however distorted into brand-new meanings.
The defense admits it is unclear whether the FBI directly sought the document and encouraged its theft or inadvertently obtained it.
It is clear, however, that the DOJ rules require the prosecution in possession of a suspected privileged document must hand it over immediately to a “Privilege Review Team,” also known as a “Taint Team,” before reading or analyzing it.
Role of the Taint Team
A DOJ “taint team,” is a group of government attorneys and agents separate from the prosecution, whose purpose is to review seized materials to identify and separate any privileged information before the prosecution team can access it. Any identified privileged information is withheld from the prosecution team to ensure that the prosecution cannot use it in the investigation or trial.
The whole purpose of a taint team is to protect attorney-client privilege, while allowing the government to continue its investigation without improperly accessing privileged communications, which might result in the dismissal of the charges.
It is hard to imagine how the prosecution failed to identify that a document that says at the top of every page, “attorney-client privilege” should not have been delivered immediately to the taint team.
Instead, the prosecutors studied it for a year and a half. According to the defense, the prosecutors patterned their indictment based on the document, then offered to place it with a taint team – post-indictment.
Analogies of Failure
That’s like locking the safe after the robbers emptied it. Or sewing a torn parachute after jumping out of the plane, or putting sunscreen on after you’ve gotten burned to a crisp, or buckling your seatbelt around your waist after the car crash and with your head smashed right through the windshield, or buying life insurance after you’ve already died, or charging two women with conspiring for 12 years to commit forced labor and never succeeding once, and then making up charges of conspiring based on a stolen privileged document that you don’t understand and should have never looked at in the first place.
You have to wonder, really wonder, about these prosecutors.
Frank Parlato is an investigative journalist, media strategist, publisher, and legal consultant.
Please leave a comment: Your opinion is important to us!
I think truth is truth whether privileged or not, and I find it interesting that the writer of this article did not focus on the content’s truth here so that we could suss out the big picture and understand what of the letter could be discussed as it’s been partially revealed by the content of the indictment.
It is also true that integrity is essential to those carrying the responsibility of making an indictment.
These articles would have a lot more impact if they were more even-handed and less ridiculously sensational.
Scott Johnson steals toilet paper from gas station bathrooms.
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It’s scary to think that even at the highest level of our Justice system, there are terrible and dangerous blunders that can lead to wrongful convictions. Ouch. Yikes. Glad this is being exposed.
It’s wild to see these issues surface. Transparency is crucial. What do you think will happen next with the investigation?
This is insightful. Thanks for getting it out there.
Watching all this unfold in the media and knowing the truth is so powerful it will come out no matter what, is the most riveting thing.
The people who know the core of Rachel and Nicole, know there is no evidence and that the only way for the government to win this is to cheat.
The government loves to pretend they are fighting for good when they are more corrupt than anyone and this right here proves that.
Frank thank you for your willingness to look so deep into this and you touch the truth.
On Topic & Off Topic:
The DOJ prosecuting Nicole Daedone of One Taste is an obscene joke!!!!
It’s a show trial and a distraction.
Here is a list of people who should be investigated and prosecuted:
https://nymag.com/intelligencer/article/who-are-the-newly-revealed-jeffrey-epstein-associates.html
The Jeffery Epstein sex syndicate?!?
The DOJ is a god damn joke!
Has this case ever been about anything other than a practice that supports women’s freedom and sexuality? I don’t think so. But that practice happens to be entirely legal. So at this point, when it seems the prosecution has no charges left other than that of “forced labor”.. no wait – “intention to force labor” with which to prosecute, it should be of no surprise that they have (past tense) played dirty in their attempts to win, that being, it seems, all that really matters anyway. Nonetheless, it’s beyond disturbing to hear that supposed servants of the law will defy legal doctrine to do so. I know the case, I know the defendants, not as those “bad girls” (good grief, Roy Bean, thought the hangin’ judge was dead), but as human beings. And damned good people at that. I only hope the judge has the vision to recognize a real crime, which is this intentional disregard of attorney-client privilege.
First day in the OT classroom, first words I heard, which I heard frequently and repeatedly from then on: “Yes or No are both COMPLETELY ACCEPTABLE answers!” EVERYTHING in that school was completely voluntary and consensual. People were there because they wanted to be there. Space was left for each participant to consider what answer they wanted to give. It was up to each participant to claim that space. In the instances when I personally opted out of an activity there was not the slightest shadow of guilt, shame, or push for me to do anything other than what I was choosing. It is beyond me to understand how anything originating in this premise can be called a ‘Forced Labor Conspiracy!’ Huh? And what’s a ‘conspiracy’, anyway? At what point does ‘brainstorming’ or talking with friends about some possibility or idea become a ‘conspiracy’? Especially if it never results in any actual ‘Forced Labor?’
Now this? To learn that the hurtful and damaging accusation against Rachel and Nicole is based on evidence that has been obtained illegally and unethically? I can only imagine that someone got carried away and that they themselves trespassed on their own personal boundaries. Now they are pointing the finger of blame outward, instead of looking inside themselves for their own reasons and motivations for the actions that they took, which they now regret. In any and every case, ‘Yes’ or ‘No’ would have been perfectly acceptable answers. Apparently they chose what they did not actually want. Who’s to blame for that?
Should this case continue and the actual truth come to light, I can only imagine that those who accused will be embarrassed and discredited, and the prosecuting attorneys will be found guilty of incorrect process and procedure, with all of the consequences of that. Knowing that, should the ‘wheels of justice’ continue to roll on?
Ginzo, why are you not posting my comment to Patriot God on the last article? Why are you protecting Patriot God?
Never a good look if the prosecution has to use nefarious ways to prove guilt! Hoping for the truth to come in the end.
For someone who is very familiar with the situation with One Taste this articles is a very clear description of the current situation. I have not been able to understand the reason for the lawsuits other than its being put in the same bucket as NXIVM which is entirely inaccurate. This article clearly lays out the situation and facts which mirrors my own understandings and conclusions. It brings clarity to what has been a very confusing episode.
Oh gosh, this is the kind of miss step that could really damage their reputation, or maybe better said, reveal their sinister ways. If they don’t usually have to go to court for harassment cases like this, then this is the kind of thing they could do to defendants all the time, without anyone ever knowing! Gosh, I hope their unfair practices finally get revealed!
Please, keep us updated on their response Frank.
Interesting to see behind the curtain of the prosecution and the utter failure on the taint team’s part. Where is the justice in all this, Justice System?
I have chills. This is so upsetting and unacceptable, much less illegal, that attorney-client privilege was violated by the prosecution in this case.
The lawyers in my family take attorney-client privilege very seriously. To the point where some of that mindset has rubbed off on me. There’s a way that I don’t want to know information that’s not meant for me. And if you want to talk about it, that’s your choice, but I’m not going to participate. But I’m just an ordinary citizen, not a federal prosecutor. The level of integrity I have is between my God and myself. A federal prosecutor’s integrity impacts not just their own spiritual journey, but the lives and livelihoods of everyone they accuse of a crime. This is a very high stakes job which comes with an extremely high level of responsibility.
I mean if we look at a case where women are being indicted that they conspired to do a crime that they are not being indicted for and then the prosecution is using privileged documents they’re not even supposed to read to compose that indictment… we genuinely have bigger problems in the legal system than most of us realize.
If I didn’t care about these women so much, I would say thank God this whole thing is happening so the level of corruption in the system can be exposed. But at this point, I think we could just call it a day, dismiss the case, the prosecutors could apologize (if it’s on their conscience to do so), and everyone could fold up their tents and go home.
well, this may not be the largest miscarriage of justice since the crucifixion of Christ, but it is certainly operating by similar principles
WOW! What a blunder. Surely they’d understand that’s illegal and bound to come back and bite the prosecutions case. How could they even start down that path in the first place?!
Didn’t the lead prosecutor for this case already bail? Wouldn’t be surprise she saw what was coming and was trying to dodge a bullet. This case might end up costing EDNY a couple bar cards….
you would think somewhere along the way that the prosecution would realize that they have falsely charged these women and politely back out of it. However, a conviction rate is how they earn their worth in the world and it really has nothing to do with justice. I’m sure anyone with an IQ above 4 would realize that this is complete bullshit, but the chief job description of prosecutor is apparently to pedal bullshit effectively. It makes you wonder how many other people are sitting somewhere in confinement that are the result of prosecutors pushing their high conviction rate agenda. I can just imagine the inner workings of the prosecutors mind when they’re picking a jury going “oh this person will buy my bullshit. Let’s have them on the jury” rather than having someone with a level of discernment that might actually be able to use their own sense of right and wrong and rationality to determine conviction.
Hopefully this is the final straw in this trumped up case, which is wasting taxpayer money to prosecute.
Oh my gosh. What a mess. The prosecutors in this case feel like they are going against the rules to have their chosen verdict be “right”. Ironically – a verdict which says that the 2 women charged “went against the rules” (which is seems no one can prove).
I just got a jury questionaire in Brooklyn. I wonder if I’ll be in the pool for this case…unlikely, but definitely possible. I wouldn’t qualify to be a juror but it would still be interesting to be called.
Did it ever occur to you that the prosecution has to cheat a little to defeat the bad guys or in this case the bad girls?
These two are sneaky enough to plan a forced labor caper for 12 years and not get caught. Prosecutors have to be even sneakier. The rules are meant to be broken and a foolish following of due process is the hobgoblin of an unsuccessful prosecutor.
To maintain a 98 percent conviction rate prosecutors have to ignore attorney-client privilege. That only helps shyster lawyers get their guilty clients off.
In some ways it so a disgrace to have only a 98 percent conviction rate since 100 percent of the defendants are guilty.
The only standard for the DOJ is the double standard.
Clearly a miscarriage of Justice. I look forward to hearing the judge’s decision.
Let’s hope this is the nail in the coffin of a ridiculous case against a hypothetical crime.
As one of the people who believes that Nicole and Rachel are being unfairly prosecuted I am delighted to read this. I sincerely hope that, if this Prosecutor misconduct is established it will help the case to quickly end up where it should’ve been all along – dismissed.
How much did you pay to stroke off women, John? Because there’s no other way you can get a woman to let her touch you.
What a tangled web we weave…… if what the defense contends is true, this is truly an egregious violation of a basic principle of law, attorney- client privilege. In law especially, the ends do not justify the means and I would hope the judge would see the irreversible prejudice to the defense that cannot be overcome. These prosecutors should have to answer to an Ethics Committee in addition to dismissal of all charges.
Being associated with a exploitative sex cult is really cutting into your wannabe coaching income, Michelle. Poor you.
For a bunch of people you’d think are supposed to uphold the law, they don’t seem to keep to it for themselves
exactly