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Fake lawyer files false document defending Bill Cosby. 3rd Circuit says it's not a crime.

5 minute read

Bill Cosby accuser Andrea Constand embraces lawyer Dolores Troiani during a news conference after a jury convicted actor and comedian Bill Cosby for sexual assault during a retrial in Norristown, Pennsylvania, U.S., April 26, 2018. REUTERS/Brendan McDermid

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(Reuters) - Dolores Troiani, a longtime lawyer for one of the women who accused comedian Bill Cosby of sexual assault, received an unexpected PACER notification one day in 2016.

Troiani was representing Cosby accuser Andrea Constand in a defamation suit against Bruce Castor, the Pennsylvania prosecutor who declined to bring charges based on her allegations. The automated PACER email informed Troiani that her motion to file an inadvertently omitted exhibit had been docketed in Constand’s case, along with the exhibit.

The surprise twist: Troiani hadn’t filed the motion or the purported exhibit – an unsigned referral to the IRS, asserting that Constand had failed to report income from her “baseless lawsuits” against Cosby and other defendants.

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“It seemed extremely odd,” said Troiani, a partner at Troiani & Gibney in Berwyn, Pennsylvania. “I called the clerk’s office, and they said they’d never heard of anything like this.”

The clerk’s office told her to call the chambers of U.S. District Judge Eduardo Robreno of Philadelphia, who was presiding over Constand’s case. Troiani once again explained, this time to Robreno's clerks, that she hadn’t filed the motion or the document that had been docketed in her name.

Robreno acted speedily when his clerks told him about Troiani's call. The judge entered an order striking the fake motion and exhibit, noting in the docket that the filing was a fraud and would be reported to federal investigators.

The FBI devoted considerable effort to figuring out who was responsible for the fake filing. The documents had been hand-delivered to the clerk’s office as hard copies, so there was no direct electronic trail. But it turned out that Troiani had previously received an email that included the same IRS referral. That email was one of several from the same sender, who threatened to expose Constand’s address and phone number unless she rescinded her accusations against Cosby.

The FBI used data from the emails to track down Joseph Johnson, a Maryland man whose work computer showed thousands of searches for information about Constand and Cosby sexual assault allegations. Johnson even had a PACER account and had accessed filings in Constand’s case, including a motion by Troiani that he allegedly used as the model for the fake filing in her name. And in an evidentiary coup de grace, the government was able to pull Johnson’s fingerprint from adhesive tape on the package that had been delivered to the courthouse clerk’s office in Philadelphia.

Johnson was tried and convicted in 2019 for the federal crime of making a materially false statement. The judge in Constand’s case, Robreno, appeared as a witness in the government’s case, telling jurors that he relies on case dockets whenever he needs to make a decision. “Every time I look at the docket, I extract information,” Robreno said. “And then, based on that information, I take action.”

The 3rd U.S. Circuit Court of Appeals overturned Johnson’s conviction last week.

The appeals court expressed little doubt that Johnson was responsible for the fake filing. (Even Johnson’s appellate lawyers from the Philadelphia Federal Public Defenders office conceded in their brief that he had sent Troiani threatening emails, including the email that contained the IRS form that was later part of the false docket entry.) But the 3rd Circuit concluded that the government failed to prove that Johnson’s filing was material, a necessary element of the crime he was charged with.

Prosecutors from the Philadelphia U.S. Attorney’s office argued that Robreno’s quick response was, in and of itself, evidence of the significance of a fake PACER filing. As soon as his clerks told him that Troiani hadn’t actually filed the motion and exhibit that had been submitted in her name, the judge ordered the document to be stricken from the docket.

“If the identity of the filer had been immaterial to the court, the court would not have struck the filing,” the government argued. “It could not be clearer that the identity of the filer was the key factor in the judge's decision to strike the document.”

The 3rd Circuit didn't see it that way. Judges Brooks Smith, Paul Matey and Michael Fisher said in an opinion written by Matey that prosecutors offered no proof that the fake filing had influenced – or was even capable of influencing – any actual ruling by the judge.

Johnson's manufactured exhibit accusing Constand of dodging taxes had nothing to do with the underlying defamation case, the appeals court said. Even if Robreno considered it, Matey wrote, there was no evidence that it would have affected the case.

Johnson was responsible, the 3rd Circuit said, for a “malicious” disruption to the rule of law. But prosecutors, the court said, failed in his case to honor the “ancient guarantee” that bad acts do not constitute a crime unless the government proves every element.

The appeals court ordered the entry of a judgment of acquittal for Johnson, who was ordered to be released from prison immediately.

So is it now open season for anyone who wants to pretend to be a lawyer and file patently false documents in trial courts in the 3rd Circuit? The U.S. Attorney’s office declined to comment. Johnson counsel Abigail Horn declined to venture beyond a statement: “We are gratified that the court saw the problems with this case.”

Troiani, who, after all, was Johnson’s target, told me she disagrees with the 3rd Circuit’s analysis of materiality. Like prosecutors, she said Robreno’s decision to strike the false filing from the docket proves that Johnson’s false statements were capable of influencing the case. Otherwise, she said, why would the judge bother to get them out of the case record?

“It’s an issue because it affects the entire judicial system,” Troiani said. “There has to be a remedy when someone does something like this.”

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.

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