Michael Cohen’s lawyer cited three fake cases in possible AI-fueled screwup

A lawyer representing Donald Trump's former attorney Michael Cohen filed a court brief that cited three cases that do not exist, according to a federal judge. The incident is similar to a recent one in which lawyers submitted fake citations originally provided by ChatGPT, but it hasn't yet been confirmed whether Cohen's lawyer also used an AI tool.

"On November 29, 2023, David M. Schwartz, counsel of record for Defendant Michael Cohen, filed a motion for early termination of supervised release," US District Judge Jesse Furman wrote in an order to show cause yesterday. "In the letter brief, Mr. Cohen asserts that, '[a]s recently as 2022, there have been District Court decisions, affirmed by the Second Circuit Court, granting early termination of supervised release.'"

Schwartz's letter brief named "three such examples," citing United States v. Figueroa-Florez, United States v. Ortiz, and United States v. Amato. The brief provided case numbers, summaries, and ruling dates, but Furman concluded that the cases are fake.

"As far as the Court can tell, none of these cases exist," Furman wrote. Furman, a judge in US District Court for the Southern District of New York, ordered Schwartz to provide copies of the three cited decisions by December 19.

"If he is unable to do so, Mr. Schwartz shall, by the same date, show cause in writing why he should not be sanctioned pursuant to (1) Rule 11(b)(2) & (c) of the Federal Rules of Civil Procedure, (2) 28 U.S.C. § 1927, and (3) the inherent power of the Court for citing non-existent cases to the Court," Furman wrote.

Assuming he can't turn up those cases, Schwartz must also provide "a thorough explanation of how the motion came to cite cases that do not exist and what role, if any, Mr. Cohen played in drafting or reviewing the motion before it was filed."

Cohen’s new lawyer couldn’t verify citations

Schwartz advertises his criminal defense services on a personal website with a tagline that says, "The power of the lawyer is in the uncertainty of the law."

We contacted Schwartz today and will update this article if we get a response. A Politico reporter called Cohen yesterday but reported that "Cohen hung up the phone" when asked for comment.

In a footnote on his order, Furman notes that the court "is apparently not alone in being unable to find these cases." On December 6, attorney E. Danya Perry notified the court that she would be representing Cohen. On December 9, Perry wrote to support the motion for terminating supervised release but acknowledged that she could not verify the cases cited by Schwartz.

"While several cases were cited in the initial Motion filed by different counsel, undersigned counsel was not engaged at that time and must inform the Court that it has been unable to verify those citations," Perry wrote.

This may be another instance of a lawyer citing fake cases hallucinated by an artificial intelligence tool. In May, a federal judge in the same District Court imposed a $5,000 fine on two lawyers and their law firm after they admitted to using ChatGPT to help write court filings that cited six nonexistent cases invented by the AI chatbot. The lawyers also had to write letters to the six real judges who were "falsely identified as the author of the fake" opinions cited in their legal filings.

In Texas, one federal judge imposed a rule banning submissions written by artificial intelligence unless the AI's output is checked by a human. In another federal court in the District of Columbia, convicted rapper Prakazrel "Pras" Michel argued that he should get a new trial because his lawyer "used an experimental AI program to write" a "frivolous and ineffectual closing argument."

A citation “to nothing at all”

In the Cohen case, Furman's order to show cause said that one of the three apparently bogus citations "refers to a page in the middle of a Fourth Circuit decision that has nothing to do with supervised release." A second "corresponds to a decision of the Board of Veterans Appeals," and the third "appears to correspond to nothing at all."

"Moreover, the Court contacted the Clerk of the Court for the United States Court of Appeals for the Second Circuit, who found no record of any of the three decisions and reported that the one listed docket number (for Ortiz) is not a valid docket number," Furman wrote.

Schwartz's brief claimed that the Figueroa-Florez case "involved a defendant who had been convicted of possession with intent to distribute cocaine." The brief claims that a district court granted a motion allowing early termination of supervised release and that the US Court of Appeals for the 2nd Circuit affirmed the ruling.

"The court found that the district court had not abused its discretion in granting early termination and that the defendant had met the burden of demonstrating that he was no longer a danger to the community," the Schwartz brief claimed in reference to a case that apparently does not exist.

The other two cited cases also supposedly involved 2nd Circuit appeals court rulings that upheld early terminations of supervised release. Schwartz claimed the Ortiz case involved "a defendant who had been convicted of conspiracy to distribute cocaine base," while the Amato case supposedly involved a defendant convicted of tax evasion.

Cohen testified against Trump

In December 2018, Cohen pleaded guilty to five counts of evasion of personal income tax, making false statements to a bank, excessive campaign contribution, and causing an unlawful corporate contribution. The charges included payments to two women to ensure that they did not publicize allegations about affairs with Trump before the 2016 presidential election.

Cohen was sentenced to three years in prison but was released early due to the coronavirus pandemic and allowed to serve the rest of his sentence in home confinement. Cohen was also ordered to pay restitution and was sentenced to three years of post-release supervision.

The Schwartz brief arguing for early termination of supervised release points out that Cohen testified for two days in the State of New York's case against Donald Trump:

Specifically, at the recent New York Attorney General trial, for more than 10 hours on the stand, Mr. Cohen provided damning evidence of the Trump Organization's alleged business misconduct, including testifying that he and other executives inflated the value of the Trump Organization's assets on financial statements in order to secure favorable loans and insurance premiums. Mr. Cohen's testimony was critical to the Attorney General's case in that he testified that the Trump Organization would instruct them to increase the numbers on financial statements, even when they knew the true values were lower. It must also be acknowledged that Mr. Cohen will again be called in March 2024 as "the key witness" in the Manhattan District Attorney's trial. These testimonies do not come without substantial anxiety and stress, including threats of physical harm and death.

The US government opposed Cohen's motion for early termination, arguing that "Cohen has failed to identify any new extraordinary or sufficiently compelling reasons for his request, has continued to deny responsibility for his own criminal conduct, and appears to have lied under oath in a court proceeding." During his testimony, "Cohen again attempted to walk back his guilty plea to tax evasion," the US said.

The US brief did not mention the apparently fake citations.