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					                               THE CORNWELL LAW FIRM
                                     640 KENNEDY DRIVE
                                   BEAUMONT, TEXAS 77706
                                    OFFICE: (409) 899-8639
                                     FAX: (713) 583-9020
                                     MOBILE: (409) 659-7788
                                  e-mail: gtcornwell@gmail.com

                                        October 10, 2011

Senator Rand Paul                                                                   VIA EMAIL
United States Senate

Dear Senator Paul:

       I write this letter on behalf of Tammy and Hubert Vidrine, who were victims of a
malicious prosecution that began in September, 1996, with an EPA-led raid on Canal Refinery,
in Church Point, La, was followed by an felony indictment of Mr. Vidrine in December, 1999,
and finally ended fifteen years after everything began, on September 30, 2011, with a judgment
issued by U.S. District Judge Rebecca Doherty, Western District of Louisiana, awarding $1.67
million in compensatory damages.

        I write principally to convey to you my disagreement with the suggestion of David
Uhlmann, former chief of the environmental crimes section at the Justice Department, as
reported in the New York Times on October 4, 2011, that "fortunately, this is an isolated
situation." This probably is an unusual case; but not because it reflects an isolated problem.
More probably, it is an unusual case because the Federal Tort Claims Act discourages lawyers
from filing malicious prosecution cases.

        When Mr. Vidrine came to me in September, 2005, I filed an administrative claim with
the Department of Justice, as required by the Federal Tort Claim Act. By July, 2007, DOJ had
failed (for nearly two years) to take any action on the claim, so I filed the civil suit in federal
court in Lafayette, LA. I then fought with the government for over 3 ½ more years to get access
to the EPA/FBI files documenting the perjury and other acts used by government agents to
secure an indictment in December, 1999, and to get truthful deposition testimony uncovering
how and why they had kept the prosecution going for nearly four more years (until September,
2003), when all charges were finally dismissed because there had never been a shred of evidence
that any crime had been committed. I then tried the case in June, 2011.

        I was a federal prosecutor for seven years; I was the Deputy Chief Counsel for a
congressional committee for two years; and I tried cases for the Department of Energy for two
years. Based on those many years of federal service, I generally agree with Mr. Uhlmann that
most of our federal (and state) law enforcement officers are good people, with good intentions.
But I think it is both inaccurate and dangerous for our country to assume that the abuse of power
Senator Rand Paul
October 10, 2011
Page 2

that occurred in this case was an isolated situation, and thereby brush it aside as being of little
significance.

        In our country, we are proud of our freedoms, not the least of which is our freedom from
fear of abuses of power by our own government. It is arguably our most important freedom, the
one that most distinguishes us from totalitarian regimes. In our country, we have always
recognized the undeniable reality that power tends to corrupt those who hold it, especially if the
power is not restrained – and if its abuse is not effectively deterred.

       Thus, our forefathers created three separate branches of government to provide restraints
on governmental power through a system of checks and balances.1 But history also teaches that
we cannot rely solely on our government to protect us from its own abuses of power – such as
occurred in this case, where the government failed to adequately supervise a rogue EPA agent
(as well as others within the EPA and the FBI who assisted him) while he abused his power by
maliciously prosecuting an innocent citizen. So, to fill that gap, we have historically relied on
our civil tort system to provide that otherwise missing and much needed deterrence by making
those who abuse their power pay compensation to the victims injured by that abuse.

        But even though in this case justice has finally been done – 15 years after it all started
with a raid on Canal Refinery in September, 1996 – and Tammy and Hubert Vidrine have finally
been awarded compensation for their injuries, neither the Federal Tort Claims Act itself, nor the
way it is often administered by the Department of Justice, makes it (at least in my opinion) as
effective as it could and should be as a deterrent against the abuse of power. Instead, the FTCA
discourages the filing of these cases, and thus, I believe the ones we see are only the tip of the
iceberg.

       Plainly, what happened in this case just should not happen in our country, and to
minimize the number of times it happens again the FTCA should be strengthened to make it a
more effective form of relief for those injured by government misconduct. Most victims of
governmental abuse of power simply cannot afford to pay a lawyer to pursue malicious
prosecution cases, because the standard of liability (which requires proof of the lack of “probable
cause”) is high, and because malicious prosecution cases (like this one) are often complex and
involve many witnesses and thousands of documents. (The government produced over 15,000
documents in this case and then argued that their extensive investigation proved that they did
have probable cause and were not acting maliciously.)


        1
                 As noted in the U.S. Supreme’s Court’s 2008 opinion in the BOUMEDIENE case (128 S.Ct.
2229) at page 21, and pages 29-31: “The Framers' inherent distrust of governmental power was the driving
force behind the constitutional plan that allocated powers among three independent branches. This design
serves not only to make Government accountable but also to secure individual liberty.”
Senator Rand Paul
October 10, 2011
Page 3

        Given those realities, the Federal Tort Claim Act would better serve our country’s
historical interests in preserving our freedom by preventing abuses of power (1) if it allowed the
Court to award punitive damages (as the Federal Court noted in its opinion in this case, stating
on page 142 that “. . . given the egregious conduct displayed by an agent of the government and
the devastation wrought on otherwise law-abiding citizens, had punitive damages been
allowable, this Court would have awarded punitive damages in the hope of deterring such
reckless and damaging conduct and abuse of power in the future;” (2) if it allowed the Court to
compensate Plaintiffs for the attorneys fees they incur in prosecuting the action, (3) if it did not
cap attorney fees at 25% of the Plaintiff’s recovery, and (4) if – at least in those cases which are
brought solely against the United States (and not against any prosecutor personally) – it
expressly allowed “malicious prosecution” claims to be based on the acts of “prosecutors.” 2

         Also, those same interests in preventing the kinds of abuses of power that occurred in
this case would be better served if the Department of Justice had more and better resources for
evaluating the merits of malicious prosecution claims, and thereby could both better fulfill the
statutory objective of expeditiously resolving those claims administratively (and without
litigation) whenever possible, and also better supervise its lawyers during the litigation (and
settlement) of claims that are not administratively resolved prior to litigation.

        In the absence of such reforms, the Federal Tort Claims Act remains a major obstacle to
bringing these cases, and that fact strongly suggests that what happened in this case is not “an
isolated situation.”

                                                  Yours truly,


                                                  Gary Cornwell




        2
                 I do not suggest that “prosecutorial immunity” should be eliminated. However, that concept
unnecessarily complicates the presentation of these cases, as it did in our case even though the Vidrines did
not assert that any prosecutor had “maliciously prosecuted” Mr. Vidrine. Instead, we argued that the
prosecutor (and thus, in turn, the Court) had been mislead by the EPA and FBI as to the facts and the law.
On the other hand, the FTCA should make clear that rogue agents cannot secure the assistance of prosecutors
to achieve their wrongful ends, and thereby secure for themselves immunity from their scheme.

				
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