This weekend, flip through White Collar magazine (by Jack Sharman) http://flip.it/rkxEc and follow it for white-collar news and notes.
If you don’t use Flipboard, it is very handy as a personalized news aggregator.
With some trepidation, we finally took the plunge and established a White Collar Wire page on Facebook.
Please go over there and “like” it, “friend” it and otherwise approve us. I promise it will contain no vacation photos, nor my childrens’ witticisms nor Vine renditions of athletic events.
Even better, visually, is that White Collar Wire is now on Tumblr as well.
Finally, for sound business-crime weekend reading on either platform, you cannot do better than Smash Detective-Cases:
It has become commonplace to note the ascendancy in white-collar investigations of techniques previously reserved for investigations of organized crime and violent, life-and-death offenses.
Three recent articles bring the issue around again.
The New York Times notes that More Federal Agencies Are Using Undercover Operations:
The federal government has significantly expanded undercover operations in recent years, with officers from at least 40 agencies posing as business people, welfare recipients, political protesters and even doctors or ministers to ferret out wrongdoing, records and interviews show. . . .
Undercover work, inherently invasive and sometimes dangerous, was once largely the domain of the F.B.I. and a few other law enforcement agencies at the federal level. But outside public view, changes in policies and tactics over the last decade have resulted in undercover teams run by agencies in virtually every corner of the federal government, according to officials, former agents and documents. . . .
Some agency officials say such operations give them a powerful new tool to gather evidence in ways that standard law enforcement methods do not offer, leading to more prosecutions. But the broadened scope of undercover work, which can target specific individuals or categories of possible suspects, also raises concerns about civil liberties abuses and entrapment of unwitting targets. It has also resulted in hidden problems, with money gone missing, investigations compromised and agents sometimes left largely on their own for months.
The Wall Street Journal recently explained how a cooperating witness who was also general counsel of a company wore a video camera while talking with the CEO: DOJ Returns to Bare-Knuckle Tactics in Bribery Case. In particular,
U.S. Justice Department officials have said that despite the setbacks, the use of aggressive law enforcement tactics would continue. Last September, Marshall L. Miller, the deputy chief of the Justice Department’s criminal division, said wiretaps, body wires and physical surveillance “have become a staple in our white collar investigations. I can promise you we will continue to use them.”
Finally, Compliance Week points out that co-employees can be wired up: ‘Extraordinary’ Cooperation Allows SAC Capital Defendant to Avoid Prison .
Among other things, Freeman assisted prosecutors by recording conversations with Longueuil. This led to some extraordinary evidence for prosecutors such as a now-famous recorded statement by Longueuil about how he disposed of an incriminating “log” of insider information that was on a USB flash drive. Longueuil said he tooktwo pairs of pliers, and then you rip it open. Pulled the external drives apart. … Put ‘em into four separate little baggies, and then at 2 a.m. … 2 a.m. on a Friday night, I put this stuff inside my black North Face … jacket, … and leave the apartment and I go on like a 20 block walk around the city … and try to find a, a garbage truck … and threw the sh*t in the back of like random garbage trucks, different garbage trucks … four different garbage trucks.
As a point of personal privilege, I may be excused for cheering the vigor with which federal law-enforcement treats a Joseph A. Bank-wearing white-collar employee as though she or he were an ISIS-trained Bonnie or Clyde. Such an approach generates more work for me and my fellow white-collar defense lawyers. There is much to be said for that prospect.
As a policy matter, however, what is the significance of the use of traditional organize crime techniques against business people? And what is the significance of this phenomenon for those people and the businesses they try to advance?
There are doubtless multiple significant – and, as yet, unknowable – aspects to this practice. The most obvious aspect, however, is the continued erosion of the distinction between violent and nonviolent crime for purposes of investigation, indictment and sentencing. When a prosecutor – or any lawyer – uses the same tool in Case A and Case B, by definition he or she sees those two cases to be substantively and procedurally analogous. (Otherwise, it would be a waste of time to use the same two in both cases).
In light of the power that a federal prosecutor wields, the erosion of that distinction can lead to an overbroad reading of the criminal statutes and related regulations. Many of those statutes are already broad, indecipherable and protean by virtue of the fact that Congress drafted them.
In that regard, political bloodlust that can arise on certain topics. Child pornography is one. Crime-in-the-suites is another. Political bloodlust is an important aspect of our consideration of the application of organized crime investigatory techniques to business offenses. Being “tough on crime” is rarely a political loser; being tough on sound-bites and abstractions such as “Wall Street,” “bankers” or “polluters” is equally attractive to federal legislators.
In addition, the erosion of the distinction is cheered on by the most sophisticated members of the plaintiffs’ bar as well as by single-issue activists who otherwise would have little or nothing to do with the criminal law.
So what? If a tool can investigate and prevent one type of crime, why not apply it to another type of crime? Why should a white-collar defendant get a pass from the rough-and-tumble techniques used on Banjo the Meth Dealer? In any event, one might argue, there are safeguards already in place with regard to these techniques, without regard to the subjects of the investigation.
In other words, why is Sharman so wrapped around the axle on this question?
Unwrapping myself from the axle, I identify at least four separate problems here.
First, erosion of the distinction between street crime and “suite crime” skews the selection of cases to prosecute. In particular, questions of intent with regard to street crime, while certainly present, rarely pose the same kinds of nuances and knotty problems that the question of intent presents in white-collar cases.
Second, as illustrated by the Wall Street Journal article, erosion of the distinction implicates the attorney-client privilege:
Within the Treasury Department, undercover agents at the I.R.S., for example, appear to have far more latitude than do those at many other agencies. I.R.S. rules say that, with prior approval, “an undercover employee or cooperating private individual may pose as an attorney, physician, clergyman or member of the news media.”
An I.R.S. spokesman acknowledged that undercover investigators are allowed to pose in such roles with approval from senior officials. But the agency said in a statement that senior officials “are not aware of any investigations where special agents have ever posed as attorneys, physicians, members of the clergy or members of the press specifically to gain information from a privileged relationship.”
The agency declined to say whether I.R.S. undercover agents have posed in these roles in an effort to get information that was not considered “privileged,” meaning the type of confidential information someone shares with a lawyer or doctor.
Banjo the Meth Dealer may have “counselors,” but they are likely to be chosen because they are armed, inked and loyal, rather than for their legal advice. (Of those three qualities, I claim one but decline to identify it). When a company’s general counsel videos his CEO; when IRS agents can permissibly pose as attorneys; or when HHS OIG agents as physicians, we have entered a world that is deeply threatening to perhaps the oldest privilege in Anglo-American law.
Third, the proliferation of undercover agents and secret monitoring can result in a bitter comedy of errors. The Journal, again:
Across the federal government, undercover work has become common enough that undercover agents sometimes find themselves investigating a supposed criminal who turns out to be someone from a different agency, law enforcement officials said. In a few situations, agents have even drawn their weapons on each other before realizing that both worked for the federal government.
One is put in mind of the fine mob movie The Departed with Jack Nicholson and Leonard DiCaprio, in which Nicholson’s character (somewhat reminiscent of Whitey Bulger) has a gang in which almost everyone is working for a state or federal agency:
Fourth, sound discretion and public perceptions of justice are skewed when federal investigatory entities get at least a portion of their funding from successful undercover activity and other secret operations. This system, even with some checks and balances, is not an incentive but, rather, an outright bounty.
You can always follow our advice about preserving the attorney-client privilege. Barring a political and technological sea-change, however, there is no reason American companies should expect that the government’s hunger to use mob-oriented techniques in the business context will abate any time soon.
We have recently updated and supplemented our “Blogs | Links | Sources” page here. It might be the most useful page on the site, with multiple links to writers and journalists dealing with White Collar Wire’s primary afflictions: white collar crime, cocktails, crime fiction and theology.
White Collar Generally
Walt Pavlo — excellent source of daily news and commentary. Also, see his articles in Forbes.
White Collar Crime Prof Blog — thoughtful source edited by Ellen Podgor, with contributions by Solomon Wisenberg.
White Collar Watch — by Peter J. Henning, a professor at Wayne State University Law School and the author of “The Prosecution and Defense of Public Corruption: The Law & Legal Strategies.” Before teaching, he worked at the Securities and Exchange Commission’s enforcement division and then as a prosecutor at the Justice Department.
WSJ Risk and Compliance — the compliance blog of the Wall Street Journal. It “provides news and commentary to corporate executives and others who need to understand, monitor and control the many risks that can tarnish brands, distract management and harm investors. Its content spans governance, risk and compliance and includes analysis of the significance of laws and regulations, the risks inherent in global expansion and the protective moves taken by companies.”
Cyb3rcrim3 — notes on digital-crime cases by Susan Brenner, a law professor who speaks, writes and consults on cybercrime and cyberconflict.
The BLT — the blog of The Legal Times (Washington, D.C.). Not a white-collar blog, strictly speaking, but often has news items of note.
Brandon L. Garrett and Jon Ashley, Federal Organizational Prosecution Agreements, University of Virginia School of Law, at http://lib.law.virginia.edu/Garrett/prosecution_agreements/home.suphp — interesting collection of deferred-prosecution and non-prosecution agreements (“DPAs” and “NPAs”)
ABA White-Collar Blog Directory — the American Bar Association Journal “Blawg” list of white-collar crime blogs. Some are better than others.
NACDL White-Collar Crime — the white-collar page of the National Association of Criminal Defense Lawyers. Useful resources.
University of Richmond Anti-Bribery Database — good resources for researching various legal topics relating to anti-bribery law in international business.
William & Mary Law School Library White-Collar Materials — some items are only available at the Wolf Law Library, but generally a good guide.
DOJ — the United States Department of Justice main site.
U.S. Attorneys’ Manual — searchable DOJ policy.
United States Sentencing Commission — good resource for Guidelines applications, cases, news and proposed rules.
Supreme Court — search for slip opinions.
FINCEN — the Financial Crimes Enforcement Network at the Department of the Treasury.
Environmental Crimes Section at DOJ — federal environmental criminal investigation and enforcement.
Administrative Office of the U.S. Courts — especially useful for statistics and the basics of the federal judicial system.
DEA — the federal Drug Enforcement Administration.
ICE — U.S. Immigration and Customs Enforcement is “the principal investigative arm of the U.S. Department of Homeland Security (DHS). Created in 2003 through a merger of the investigative and interior enforcement elements of the U.S. Customs Service and the Immigration and Naturalization Service, ICE now has more than 20,000 employees in offices in all 50 states and 47 foreign countries.”
SEC and DOJ Resource Guide on the FCPA — guidance document on the FCPA issued by DOJ and the SEC.
SEC — the federal Securities and Exchange Commission.
SEC’s Office of the Whistleblower — the SEC’s Office of the Whistleblower, which administers the SEC’s whistleblowers’s program.
Eleventh Circuit Pattern Jury Instructions Builder — an on-line program that allows you to easily and quickly generate federal court jury instructions. Easy to use, and very handy.
Fifth Circuit Library’s Collection of Pattern Jury Instructions — pattern instructions for the Fifth Circuit and other federal circuits. No online “builder” function, but some are downloadable in Word or pdf.
Federal Public Defender Northern District of Alabama — the Office of the Federal Public Defender for the Northern District of Alabama, headed by Kevin Butler.
gazregan — the website of “gaz regan, the bartender formerly known as Gary Regan, works six shifts at The Dead Rabbit in New York City. Every year.” Cocktail recipes, newsletters and books. Bartending news.
Daily Shot — The Garden & Gun Blog — from Garden & Gun magazine. Southern food, but often drinks, too.
Gastronomista — Gastronomista is an art and design blog focused on the culture of food and drink, and was founded in October of 2009 as a way to keep track of delicious treasures, tipples, and trips around the world. It is run by Emily Arden Wells who pens under the name Miss Emma Emerson, who is an architect by day, writer and avid drinker by night.
Mouthing Off — the cocktails-blog of Food & Wine magazine.
Cocktail Whisperer — “Cocktail and food musing from Rum judge Warren Bobrow.” He is the cocktail writer for Foodista.
Esquire Drinks Database — a collection of cocktail recipes from Esquire magazine.
The Poisoned Martini — a blog and site that combines mystery fiction and cocktails.
Bourbon Blog — mostly bourbon.
Slainte — all Irish whiskey.
Beer Advocate — its motto is “Respect Beer.”
Liquor.com — from Huffington Post. Name says it all.
The Rap Sheet — rich source of news, book reviews, new releases, trade show information and sources.
The Poisoned Pen — blog of The Poisoned Pen, an excellent mystery bookstore in Scottsdale, Arizona.
The Mysterious Bookshop — blog from The Mysterious Bookshop, a longstanding store in New York.
Dead Good — a Random House-run site from the United Kingdom.
Crime Fiction Lover — news and reviews.
Dead Guys In Suits — all gangsters, all the time. Written by Pat Downey, the author of Legs Diamond: Gangster, Gangster City: The History of the New York Underworld 1900-1935 and Bad Seeds in the Big Apple: Bandits, Killers & Chaos in New York 1920-1940.
Existential Ennui —- a UK site. “The chronicle of a chronic book collector.”
Cathedral Church of the Advent —- “a Gospel-centered church, with a ‘living, daring confidence in God’s grace”’(Martin Luther) evident in any of our programs and ministries. Holding to what the Letter of Jude calls ‘the faith that was once for all delivered to the saints’, this Gospel focus finds the Cross and Resurrection of Jesus ever and only at the center.
Advent BIAY — the Advent’s Bible-In-A-Year blog.
Mockingbird — “connecting the Christian faith with the realities of everyday life.”
Titus One Nine — edited by Kendall Harmon.
Truth For Life — the blog of Alistair Begg’s ministry.
Christ Episcopal Church — in Charlottesville, Virginia.
Two different audiences — CJA criminal defense lawyers and Birmingham corporate and non-profit leaders — heard my thoughts, hopefully helpful ones, about white-collar crime and federal criminal discovery.
As part of an annual continuing legal education event sponsored by the Office of the Federal Public Defender for the Northern District of Alabama on December 12 , 2014, we discussed “Discovery In Complex Criminal Cases.” Kevin Butler heads up the Northern District’s FPD office and does a great job. (We interviewed Kevin here). Read more about the Federal Public Defender’s Office here.
This week, I participated in a white-collar crime panel for the 2014-2015 class of Leadership Birmingham, a worthwhile organization. The panel was moderated by John Carroll, former United States Magistrate Judge, former Dean of Cumberland Law School and current Director of the Alabama Ethics Commission. White-collar lawyers Anthony Joseph and John Lentine joined me on the panel. Read more about Leadership Birmingham here.
Here’s the press release: white collar crime
If they give awards for “Best White-Collar Article of The Year,” I wish to nominate one. And it’s not even, strictly speaking, an article only about white-collar crime.
Jed Rakoff is a federal district judge in the Southern District of New York (in other words, in Manhattan). We have mentioned Judge Rakoff before, here and here. He also famously criticized DOJ’s failure, as he perceived it, to prosecute individual executives in the financial crisis.
Here, he has a thoughtful article on Why Innocent People Plead Guilty.
Portions bear quoting at some length:
The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes.
To the Founding Fathers, the critical element in the system was the jury trial, which served not only as a truth-seeking mechanism and a means of achieving fairness, but also as a shield against tyranny. As Thomas Jefferson famously said, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict.
The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage. In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.
[T]he information-deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove. Indeed, until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved—unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge—but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources). Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.
In this typical situation, the prosecutor has all the advantages. He knows a lot about the case (and, as noted, probably feels more confident about it than he should, since he has only heard from one side), whereas the defense lawyer knows very little. Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor and the defense lawyer know that the grand jury, which typically will hear from one side only, is highly likely to approve any charge the prosecutor recommends.
But what really puts the prosecutor in the driver’s seat is the fact that he—because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought—can effectively dictate the sentence by how he publicly describes the offense. For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.
Why should you care about any of this? You haven’t tried heroin since the 1970s, much less sold it.
You should care because you likely do not consider yourself a criminal and would be be offended if someone in authority charged you publicly with being one. As Judge Rakoff puts it:
A cynic might ask: What’s wrong with that? After all, crime rates have declined over the past twenty years to levels not seen since the early 1960s, and it is difficult to escape the conclusion that our criminal justice system, by giving prosecutors the power to force criminals to accept significant jail terms, has played a major part in this reduction. Most Americans feel a lot safer today than they did just a few decades ago, and that feeling has contributed substantially to their enjoyment of life. Why should we cavil at the empowering of prosecutors that has brought us this result?
* * * *
First, it is one-sided. Our criminal justice system is premised on the notion that, before we deprive a person of his liberty, he will have his “day in court,” i.e., he will be able to put the government to its proof and present his own facts and arguments, following which a jury of his peers will determine whether or not he is guilty of a crime and a neutral judge will, if he is found guilty, determine his sentence. As noted, numerous guarantees of this fair-minded approach are embodied in our Constitution, and were put there because of the Founding Fathers’ experience with the rigged British system of colonial justice. Is not the plea bargain system we have now substituted for our constitutional ideal similarly rigged?
Second, and closely related, the system of plea bargains dictated by prosecutors is the product of largely secret negotiations behind closed doors in the prosecutor’s office, and is subject to almost no review, either internally or by the courts. Such a secretive system inevitably invites arbitrary results. Indeed, there is a great irony in the fact that legislative measures that were designed to rectify the perceived evils of disparity and arbitrariness in sentencing have empowered prosecutors to preside over a plea-bargaining system that is so secretive and without rules that we do not even know whether or not it operates in an arbitrary manner.
Third, and possibly the gravest objection of all, the prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed. . . . . [T]his self-protective psychology operates in noncapital cases as well, and recent studies suggest that this is a widespread problem. For example, the National Registry of Exonerations (a joint project of Michigan Law School and Northwestern Law School) records that of 1,428 legally acknowledged exonerations that have occurred since 1989 involving the full range of felony charges, 151 (or, again, about 10 percent) involved false guilty pleas.
When a defendant enters a plea in federal court, the judge asks him or her questions about the defendant’s acknowledgment of guilt. This process is called a “colloquy” under Rule 11 of the Federal Rules of Criminal Procedure. The court must assure itself that “there is a factual basis for the plea” and that “the plea is voluntary and did not result from force, threats, or promises (other than promises in the plea agreement).”
But in a system where, as Judge Rakoff puts it, “it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision,” what constitutes “force”? Who defines “threats”?
Usually, Rule 11 colloquies are perfunctory, although occasionally the pleading defendant balks entirely, and the plea goes out the window.
Rarely, though, you get some actual discussion, as with a former Bechtel executive, accused of taking millions of dollars in kickbacks from energy companies, who entered a guilty plea last week:
During the hearing, Judge Deborah K. Chasanow asked Mr. Elgawhary if he was entering the plea because of threats against him or his family. Mr. Elgawhary laughed. “Not at all,” he said.
“Tell me why that caused that reaction?” the judge asked.
“I just want to…ease the life of my family.” he responded
“So you are pleading guilty because you are acknowledging your responsibility and this is the best you think you are going to do for minimizing impact on other people you care about?”
But had anyone threatened him with harm, the judge asked, or was the pressure he felt just from the charges themselves?
“It’s the fact that the charges are there and I don’t want to pay something more,” he said. “Let us stop here and deal with it”
Pressing further, the judge asked: “The pressure you feel comes from the charges themselves, is that correct, and not because someone else is putting any pressure on you to plead guilty?”
“Most likely, you honor,” Mr. Elgawhary said.
A plea often comes with a Government price-tag known as “cooperation.” The Economist makes a similar point about prosecutors-on-steroids and “cooperating” witnesses in The kings of the courtroom: How prosecutors came to dominate the criminal-justice system:
Another change that empowers prosecutors is the proliferation of incomprehensible new laws. This gives prosecutors more room for interpretation and encourages them to overcharge defendants in order to bully them into plea deals, says Harvey Silverglate, a defence lawyer. Since the financial crisis, says Alex Kozinski, a judge, prosecutors have been more tempted to pore over statutes looking for ways to stretch them so that this or that activity can be construed as illegal. “That’s not how criminal law is supposed to work. It should be clear what is illegal,” he says.
The same threats and incentives that push the innocent to plead guilty also drive many suspects to testify against others. Deals with “co-operating witnesses”, once rare, have grown common. In federal cases an estimated 25-30% of defendants offer some form of co-operation, and around half of those receive some credit for it. The proportion is double that in drug cases. Most federal cases are resolved using the actual or anticipated testimony of co-operating defendants.
Co-operator testimony often sways juries because snitches are seen as having first-hand knowledge of the pattern of criminal activity. But snitches hoping to avoid draconian jail terms may sometimes be tempted to compose rather than merely to sing.
As Robert Mitchum said in The Friends Of Eddie Coyle (1973): “If I give you this, I can’t do no time.”
Here is an excerpt from our earlier take on all things Eddie Coyle, the worn-out cooperator (or snitch): George V. Higgins and the Archeology of White-Collar Crime:
In popular culture, business-crime is presented cartoon-fashion. In movies, on television or in novels, businesspeople who are corporate targets of government investigations come across as Snidely Whiplashes with French cuffs. This practice is predictable, its results boring. Not so with the work of the late Boston-based novelist and one-time Assistant United States Attorney George V. Higgins (1939 – 1999).
(Read the rest of the post here).
If plea-bargaining and press-ganged cooperation are two legs of the devil’s stool for white-collar defendants, the third leg is the evaporation of the presumption of innocence, a point we made in a post about Independence Day:
[T]he “presumption of innocence” about which we all learned (or, at least, used to learn) in civics class has been translated into a presumption of guilt. Most citizens, most of the time, believe that when a person or company is charged with a criminal offense, they are guilty (or perhaps guilty of something pretty close to the charged offense). (We have discussed presumption problems here and here).
In real life, how do I tell a client to not put very many eggs in the presumption-of-innocence basket?
To a businessperson or a professional, I say something like this:
“Imagine that you’re at breakfast one morning and see a news item. The news item says that someone has been arrested and charged with running a meth lab. To the extent you think about it at all, what do you think? You think the guy’s most likely guilty and was in fact running a meth lab, or do you think that he’s most likely innocent and is being falsely charged?”
I pause, watch it sink in and go on:
“Now, consider the guy who runs the meth lab. He sees a news item at breakfast that a banker has been charged with fraud; or a doctor has been charged with taking kickbacks; or a defense contractor has been charged with false billing. To the extent he thinks about it all, does he think that the banker or the doctor or the defense contractor is most likely innocent or most likely guilty?”
I realize that “most likely” is, technically speaking, not the standard in a criminal case. A discussion about the presumption of innocence cannot meaningfully proceed, however, without an appreciation of what I’ve come to realize over the years: jurors did not really apply (and sometimes do not even understand) the “beyond a reasonable doubt” standard.
Rather, jurors apply what I call “preponderance plus.” By “preponderance plus,” I mean that they apply the “more likely than not” standard used in civil cases, and then they tighten it. In everyday conversation, we and they use “most likely” constantly, and the words mean something. When was the last time you used the phrase “beyond a reasonable doubt” outside of a legal discussion?
So what, if anything, is to be done?
I love Judge Rakoff’s proposal to involve judges in the plea-bargaining process, but that is unlikely to happen.
Perhaps the tonic needed is the self-knowledge articulated by Clamence, the protagonist of Albert Camus’s The Fall (1956): “I was a lawyer before coming here. Now, I am a judge-penitent.”
The truth is that every intelligent man, as you know, dreams of being a gangster and of ruling over society by force alone. As it is not so easy as the detective novels might lead one to believe, one generally relies on politics and joins the cruelest party. What does it matter, after all, if by humiliating one’s mind one succeeds in dominating every one? I discovered in myself sweet dreams of oppression.
A short — 140 seconds — note on the thickets of Title IX, sexual assault, university discipline and parallel procedures:
Here’s a longer written piece: Dear Colleagues All: University Discipline, Sexual Assault and The Department of Education
And, should anyone doubt the human costs involved in the mishandling of such investigations, one only need to recall disgraced prosecutor Mike Nifong and the Duke lacrosse case, as highlighted by Ed Bradley and 60 Minutes:
We have talked about attorney-client privilege, internal investigations and the GM ignition recall: Privilege, Corporate Silence and Saul Goodman, How To Avoid Being GM’ed: The Wrongs and Rights of Clients and Lawyers and It’s Okay To Smell A Rat: Internal Investigations, Attorney-Client Privilege and the KBR Decision.
There was even a quote in Forbes.com: Of Snitches and Privileges.
And if you can’t get enough, now a short (16 minute) presentation to the Network of Trial Law Firms meeting in October:
Federal prosecutors want to know who knew what, and when [about the GM ignition-switch problem]. However, GM’s lawyers and former lawyers are bound, like all lawyers, to uphold the attorney-client privilege. A privilege clients enjoy with their lawyer to openly discuss matters with the assurance that their comments will not be disclosed to others. While the media, Congress and the general public may want an individual(s) held accountable, that information should not come from GM’s lawyers who have been intrusted with confidential information.
Every defense attorney knows more than any judge, jury or prosecutor will ever know about their client. That is a cornerstone of how our adversarial justice system works. We have a right to an attorney and we disclose everything to that attorney trusting that we will be treated fairly by justice. Can you imagine a trial where an attorney testifies against her own client? Neither can I. Corporate lawyers charged with compliance have a client also, the company.
“The purpose of the attorney-client privilege is to find out the truth, to openly discuss truth, to encourage the client to openly discuss the truth with his or or her lawyer,” according to white-collar defense attorney Jack Sharman of Lightfoot, Franklin, White LLC. “At the back end of our justice system, at trial,” he continued, “there’s no doubt that the privilege restricts the availability of some information, some of which is important, but the privilege encourages candor at the front end.”
Having covered a few white-collar trials I can tell you that legal motions by both prosecution and defense lawyers to suppress trial evidence are as common as moths around a porch light. In those cases, getting to the truth at trial is a bit tougher since the incentive is to win, not necessarily to discover the truth. So what good is truth at the front end?
“Your duty as a lawyer is to the client only, whether that is a company or an individual.” Sharman, who also has more of his own views on the GM fallout, said. “When a lawyer tells the client that the information they are disclosing is protected, then that provides an environment, an incentive, for the person to speak the truth.” While that “truth” may not be disclosed, it may be acted upon. “If an employee tells a company lawyer that they have seen something inappropriate or unlawful, that does not prevent the lawyer from speaking up within the organization,” Sharman said. Perhaps this did or did not happen in the GM case but the internal report by Anton Valukas found no intentional cover-up at the company and the release of that information disclosed more truth about the case than had been previously disclosed. So truth has its place and the privilege of confidentiality promotes speaking up rather than hindering it.
Read the full Forbes article here: The Role Of Lawyers In Compliance Should Not Include Snitching.