From the Boston Marathon to a deadly meningitis outbreak, a prosecutor shares negotiation lessons

The Latest from HLS Clinical Programs 2019-06-14

Via Harvard Law Today 

By: Adriel Borshansky

Credit: Lorin Granger

This spring, George Varghese, an assistant U.S. Attorney based in Boston, delivered a guest lecture to the Harvard Negotiation and Mediation Clinical Program’s (HNMCP) Spring 2019 Negotiation Workshop, a limited-enrollment course that combines theory and practice with the aim of improving both the participants’ understanding of negotiation and their effectiveness as negotiators. Drawing from a wide variety of prosecutorial experiences from his current work in Boston, and from his previous work as an assistant U.S. Attorney in Washington, D.C., Varghese shared insights and riveting anecdotes about what it is like to negotiate in the real world.

In the lecture, Varghese described three high-profile cases he worked on, and explained how the process of engaging in plea bargain negotiations provides a unique context in which to apply basic principles and theories of negotiation. While criminal law often features high-profile trials, he noted that 97% of cases are resolved through plea bargains.

He pointed out that several features characterize plea bargain negotiations. First, the stakes for defendants can be particularly high (often their lives are on the line). Second, the interests of defense counsel—seeking the best outcome for specific individuals—and the prosecution—representing the government and seeking the best outcome for a just society, broadly defined—often diverge significantly. Third, agreement reached through plea bargain negotiations involves a third party—a judge—who is not at the table, yet wields ultimate authority. Moreover, he said, plea bargain negotiations can be particularly complicated due to differing assessments of the law and uncertainties regarding the facts of a given case.

Varghese’s first example came from the case against Oscar Ortega-Hernandez, who shot at the White House in November 2011. After firing on the White House, Ortega-Hernandez fled and was ultimately apprehended after an extended manhunt. He was initially charged with the attempted assassination of President Barack Obama. However, during negotiations with defense counsel, this charge was dropped and Ortega-Hernandez was instead charged with destruction of property and discharging a firearm during a crime of violence, ultimately resulting in a 25-year sentence after the application of a terrorism enhancement. Varghese explained that the specific nature of the charge mattered to the defense, while the prosecution was more concerned with the ultimate sentence. This difference, he said, provided an opportunity to negotiate.

By contrast, he offered the Boston Marathon bombing case, where he said the focus of Dzhokhar Tsarnaev’s defense counsel was on avoiding a death penalty. According to Varghese, the defense was willing to accept a resolution of life imprisonment. The Department of Justice believed it was more appropriate to leave this issue to the determination of a jury. Varghese later explained the complexities of representing the public interest as a prosecutor, and how in some instances there was a compelling public interest in rigorously presenting evidence at trial and letting the jury decide. (At trial, Tsarnaev was sentenced to death.)

The case against fourteen employees of the New England Compounding Center provided a third distinct context. NECC, based in Framingham, Mass., was responsible for distributing contaminated drugs to patients in several states; nearly 800 people developed meningitis and other infections as a result of fungal contaminants. An investigation into NECC’s practices revealed that their facilities were improperly cleaned; mold and bacteria grew regularly inside NECC’s “clean rooms”; expired drugs were relabeled and reused; required tests for sterility and potency were not always conducted; negative test results were not shared with medical providers; and a pharmacy staff member worked there despite having his license revoked.

Varghese explained how the prosecutors spoke extensively with victims to ascertain their interests in prosecuting NECC, and how the governmental interests at play included revealing the fraudulent behavior to the public. While there was little opportunity to negotiate plea bargains with most defendants in this case, some of the lower-level actors did plead guilty and cooperated with the government. The strategy of negotiating with low-level actors can be effective in situations in which the government interest in obtaining testimony against higher level defendants outweighs its interest in charging everyone involved in wrongdoing.

Ultimately, the levers available to prosecutors in plea bargains consist largely of the specific charges to be brought and recommendations for sentencing. Defendants may care not only about the type and duration of sentences, but also the reputational costs of certain charges. Because plea bargain negotiations are confidential, prosecutors and defense counsel can be more candid and transparent in their assessment of the case, and this transparency facilitates frank discussions of the deals to be made (which can be helpful for prosecutors seeking agreement). At the same time, the lack of public transparency around these kinds of negotiations can mean that any given defendant has limited information to use in negotiating their deal. The dynamics of plea bargains are also strongly influenced by the rhythm of the criminal trial process—defendants may be more or less likely to consider striking a deal from moment to moment.

In the question and answer session, Varghese revisited one particular theme that emerged over the course of his talk: the notion of victims and the general public as stakeholders; what it means to consider the interests of victims or stakeholders; and how one even registers or understands those sentiments. Varghese recalled his experiences sitting down with victims of NECC’s fraud. Echoing the principles of active listening taught in the Negotiation Workshop, Varghese insisted on the importance of prosecutors’ efforts to ask open-ended questions about what victims had experienced, and what they wanted going forward.

Varghese’s visit to the Spring Negotiation Workshop is the latest installment in an annual feature of the course in which a prominent real-life negotiator speaks to  students about their professional negotiation experience in an area of practice. Past speakers have included Wendy Sherman (in 2016 and 2018), Sarah Hurwitz, Bob Barnett, Ron Shapiro, Rose Gottemoeller, Grande Lum, and Clifford Sloan. The Negotiation Workshop, offered during the January term and spring semester, combines theory and practice to improve students’ understanding of negotiation and their skills as negotiators.