Mr. Kosinski had pleaded not guilty to both counts against him. In 2012, Mr. Kosinski had purchased the handwritten lyrics from a reputable bookseller, who said that Ed Sanders, a journalist who was writing a biography of the band, had obtained the lyrics in the 1970s. Subsequently, Mr. Sanders confirmed the provenance of the materials to Mr. Kosinski. When Mr. Kosinski posted some of the lyrics on a public auction site, Mr. Henley claimed they had been stolen, but he never substantiated the claim. Instead, he agreed to purchase a handful of pages back from Mr. Kosinski. The charges against Mr. Kosinski were announced over 10 years later.
Despite the delay, which included a six-year period between when the D.A. first learned of the matter and when it presented the case to the grand jury, the proceedings before Justice Curtis J. Farber were challenging for the prosecutors from the start. When the parties arrived at the court on February 14, 2024, for jury selection, prosecutors requested the trial be delayed, which Justice Farber denied. The defendants, in consultation with DRC, then waived their right to a jury trial and agreed to proceed with a bench trial. In its Opening, Mr. Kosinski’s counsel, Mr. Laroche, argued that the lyrics, which had been in Mr. Sanders’ possession for 32 years, were not stolen. He stated, “The evidence of innocence here is overwhelming and the lack of evidence of guilt is frankly appalling.”
On the stand, Mr. Henley and Irving Azoff (the Eagles’ manager) testified that Mr. Sanders had stolen the lyrics from Henley’s California barn in the 1970s. Last weekend, however, Mr. Henley belatedly waived attorney-client privilege and produced thousands of communications that supported the argument that the lyrics had not been stolen.
Justice Farber chastised Mr. Henley for the “jarringly” late disclosures, stating that Mr. Henley and Mr. Azoff “used the privilege to shield themselves from a thorough and complete cross-examination [and] to obfuscate and hide information that they believed would be damaging to their position that the lyric sheets were stolen.” The Court noted that their actions were “in violation of both discovery mandates and the defendants’ constitutional rights of confrontation.”
Justice Farber indicated that he was bothered by the fact that the prosecutors allowed themselves to be “manipulated” by Mr. Henley and his counsel, admonishing the D.A. for failing to sufficiently probe Mr. Henley before bringing the case to trial. Nevertheless, he commended District Attorney Alvin Bragg for ultimately deciding to drop the charges and “refusing to allow itself or the court to be further manipulated.”
DRC assisted Milbank with trial strategy.