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we’ve decided that Ken is guilty; so when Ken and Josh agreed that Josh should interview Byrd seeking a statement saying that Ken was not guilty, Josh was seeking a statement that was false; and that was an effort to ob- struct justice. Trout made no effort to hide his disdain for a theory of obstruction that criminalizes the work defense lawyers are expected to do. Another count dealt with the statement that Josh had prepared that was never used and never saw the light of day until the government seized it. The indictment alleged that the statement was false because it assert- ed that Byrd had on the first day of the interview affirmed all fifty-three statements in the two-page document, when, in fact he had only affirmed forty-nine. While it had seemed to Josh and the investigator that Byrd had read every one of the fifty-three statements, the secretly recorded video of the inter- view revealed that after Byrd had read and affirmed as true number 22 on the list, Josh asked some follow up questions, and there was a digression for a couple of minutes. When Byrd returned to the list, which he alone was holding, to pick up where he had left off, he picked up not at number 23 but at number 27, inadvertently skipping over four statements. Trout made no secret of his dismay over a government charge of wrongdo- ing based on a petty inaccuracy that was plainly innocent. A final count dealt with the letter Josh had sent to the federal judge. The indictment said it was false by failing to include the fact that Byrd had implicated Ken in wrongdoing on the second day of the interview. Putting aside that the omission did not make the letter false, Trout asked how the letter could possibly obstruct any proceeding, when there was nothing pending before the judge and the letter made no request for any action? The prosecution theory was the letter was written to provide evidence of a prior consistent statement to support false testimony Josh might give if he were to testify before the grand jury investigating his client or at a later tri- al of his client. Apart from the insidious presumption that Josh might give false testimony, Trout asked rhetorically how a criminal defense lawyer could ever be expected to give testimony before a grand jury investigating a client or at a trial while also serving as trial counsel for the client. Trout pointed out that federal laws governing obstruction of justice in- clude a statutory safe harbor that an attorney who is lawfully providing bona fide legal representation to a client cannot be prosecuted for obstruc- tion of justice. Although they were unsuccessful in persuading their trial judge to dismiss the case pretrial, the defense was successful at trial with the jury. After a three-week trial, Josh was acquitted. When he was Attorney General, Robert Jackson gave a speech in New York to a con- ference of United States Attorneys. He spoke about the power they had as prosecutors. If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor, that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. . . . It is here that law enforcement becomes personal. And the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views or being personally obnoxious to or in the way of the prosecutor himself. As he approached the end of a stellar legal career, Josh had every reason to be proud of the job he had done as a defense lawyer over the course of more than 50 years of practice. Having lived a defense lawyer’s dream of be- ing recognized as a Fellow of the American College of Trial Lawyers, Josh lived in his seventy-fifth year a defense lawyer’s worst nightmare. It is a cautionary tale. If prose- cutors are either ignorant or disrespectful of the essential role that defense lawyers play in the criminal justice system, we should expect to see more lawyers on trial just for doing their jobs. W. Neil Eggleston Washington, D.C. SUMMER 2023 JOURNAL 52 Doing what he was supposed to be doing as a defense lawyer, Josh was getting in the way of the prosecutor. Josh acted eth- ically and appropriately, but nonetheless became a target of the federal prosecutors in the District of Maryland.