Behind the scenes at the Raj Rajaratnam trial is the story of the wiretaps. In a recent thoughtful article on the New York Times‘ Dealbook, Law Professor Peter Henning highlights the raging battle between prosecutors and the defense team over the admission into evidence of hundreds of hours of wiretaps. Those fuzzy but telling recordings show Raj himself, in effect testifying about the acts that… well… constitute his guilt. It is his voice, his demeanor, his personality chiding and prodding along a massive fraud, and all that in the first person. But as Professor Henning points out, this all-important evidence was challenged and nearly disallowed by Judge Holwell. He was particularly troubled by the government’s omission of facts in its application for the warrant to obtain the wiretaps:
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"The court is at a loss to understand how the government could have ever believed that Judge Lynch could determine whether a wiretap was necessary to this investigation without knowing about the most important part of that investigation — the millions of documents, witness interviews, and the actual deposition of Rajaratnam himself, all of which it was receiving on a real time basis and all of which was being acquired through the use of conventional investigative techniques."
Prosecutors may have gotten just a bit too greedy in this one. They need to be conservative and beyond reproach. Their job is not to win cases, but it is to a higher calling. As the Supreme Court famously said over a generation ago, they are empowered to do justice. In some cases that might mean walking away from even the strongest of evidence. The Constitution and the system demand no less.
So as the trial plugs along for several more weeks, remember that Raj Rajaratnam’s best hope for freedom may rest with an appellate court, years after the trial has completed. By then, the hundreds of hours of wiretaps will be silent and stored in some dusty, cavernous government warehouse.