Rogier van der Weyden (1399-1464), The Annunciation
Today is the first Sunday in the season of Advent, a time in which Christians traditionally prepare themselves by reflection and prayer for the Incarnation, the birth of Jesus, God made flesh. Ultimately, of course, Jesus was sacrificed upon the Cross for our sins, and “sacrifice” is a fit subject for Advent reflection:
We may think of sacrifice in its patriotic or collective sense, as when we attended a Veterans’ Day parade or when an earlier generation watched a movie about World War II hero Audie Murphy (1925-1971).
More commonly, we talk about sacrifice in its individual or instrumental sense, as when we say that an athlete has made sacrifices to achieve proficiency in a sport; when parents scrimp and save to send their children to college; or when George Bailey puts everybody else first in It’s A Wonderful Life (1946).
We even grapple with “sacrifice” in its entertainment sense. We are great consumers of fiction and nonfiction books and films about serial killers and psychopaths, many of whom are presented to us as treating their victims sacrificially.
None of this is how scripture views sacrifice. The distinction is critical: in one direction lies death (Christmas movies and serial killers); in the other direction we find life. How is this so?
As the father of a college-bound high school senior and an eventually college-bound high school sophomore, I pass along to them helpful articles. Whether, in the ancient words of Archbishop Cramner in the Anglican liturgy, they actually “read, learn and inwardly digest” the articles I send them is an open question, but it gives me an uneasy assurance of the discharge of paternal duty.
Students who took handwritten notes generally outperformed students who typed their notes via computer, researchers at Princeton University and the University of California at Los Angeles found. Compared with those who type their notes, people who write them out in longhand appear to learn better, retain information longer, and more readily grasp new ideas, according to experiments by other researchers who also compared note-taking techniques.
Handwriting is scripturally important, as King Belshazzar finds out in Daniel 5:1-9:
King Belshazzar made a great feast for a thousand of his lords and drank wine in front of the thousand. Belshazzar, when he tasted the wine, commanded that the vessels of gold and of silver that Nebuchadnezzar his father[had taken out of the temple in Jerusalem be brought, that the king and his lords, his wives, and his concubines might drink from them.Then they brought in the golden vessels that had been taken out of the temple, the house of God in Jerusalem, and the king and his lords, his wives, and his concubines drank from them.They drank wine and praised the gods of gold and silver, bronze, iron, wood, and stone.
Immediately the fingers of a human hand appeared and wrote on the plaster of the wall of the king’s palace, opposite the lampstand. And the king saw the hand as it wrote.Then the king’s color changed, and his thoughts alarmed him; his limbs gave way, and his knees knocked together.The king called loudly to bring in the enchanters, the Chaldeans, and the astrologers. The king declared[ to the wise men of Babylon, “Whoever reads this writing, and shows me its interpretation, shall be clothed with purple and have a chain of gold around his neck and shall be the third ruler in the kingdom.” Then all the king’s wise men came in, but they could not read the writing or make known to the king the interpretation. Then King Belshazzar was greatly alarmed, and his color changed, and his lords were perplexed.
Being greatly alarmed, having your color change and seeing your lords perplexed are all often incident to an FBI interview.
Here is another perplexing question: why do FBI agents (and most other federal criminal investigators) not record witness interviews but rather rely on handwritten notes? A layperson could be forgiven for assuming that the agents, unlike the students in the Journal article, are mostly interested in creating a complete, objective record that could be relied upon later. State criminal investigators, in contrast, often do tape-record interviews. (I realize that to say “tape” record is an anachronistic usage. Anachronism is the least of my sins).
FBI agents do not record witness interviews except by handwritten notes, with a recently-added policy exception for custodial interviews (that is, when the witness is in custody and has been given a Miranda warning). Why so?
FBI Agent Dale Cooper’s recorder from “Twin Peaks”
Another explanation for why the standard practice has gone largely unchallenged might be that when a witness interview is memorialized in an agent’s hand-written notes, there will necessarily be ambiguities, and those ambiguities can have benefits for both the government and the witness. For example, to the extent a witness’s story changes between the initial interview and trial it will be more difficult for defense counsel at trial to impeach the witness’s testimony with handwritten notes than with a typed record. This helps both the government as well as the witness him or herself.
. . . .
Of course, if the goal is to have a perfect record of witness interviews, then they should all be recorded and transcribed. That would be a worthwhile goal for the government to pursue. In fact, the government itself has gestured in this direction: Deputy Attorney General Cole’s memo calling for the recording of custodial statements also encouraged “agents and prosecutors to consider electronic recording in investigative or other circumstances” beyond custodial interviews. Until recording and transcription become the norm, however, the government should consider taking interview notes on a laptop computer. This method works for law students; it can work for federal agents.
The goal, of course, is not to have a perfect record.
To give and receive good dictation.
In FBI witness interviews, there are almost two agents. One is the questioner who focuses on the witness and one is the secretary who takes note. When the witness says something inconsistent with the Government’s theory, or exculpatory of a target (or of the witness, for that matter), it is not uncommon to see the “clerical” agent simply stop writing until the witness gets back on a preferred course. Taking notes by hand allows agents to perform this start-and-stop procedure, whereas a recording would capture everything said.
And where are Forms 301 and 303?
The FBI agent’s notes are turned into “302s,” interview memoranda so nicknamed from their federal-form number.
Although there is little “discovery” in criminal cases as compared to civil lawsuits, the government must frequently disclose “302s” to defendants when those 302s contain Brady material (that is, statements or other information tending to show the innocence of the defendant); Jencks material (statements of Government witnesses); or Giglio material (statements or writings tending to impeach or diminish the credibility of Government witnesses).
The problem is obvious: with each memorialization from notes to memorandum, something is lost in translation, whether intentionally or not. The translation-loss is why the standing criminal-discovery orders in some federal courts require the case agents to maintain their notes and also why it is good practice for defense counsel to demand that the agents preserve (and disclose) their notes, although the latter demand is sometimes a tall order.
Should you receive the underlying notes in discovery, the lost-in-translation problem becomes more pungent — and unfixable — because in the creation of her handwritten notes the agent has complete discretion. When we combine that editorial discretion with the The Efrem Zimbalist, Jr. Syndrome, the interviewee is in an impossible position:
The federal government is, in this respect, far behind the states. Alaska required recording in 1985, followed by Minnesota, in 1994; now twenty states require it, as do the District of Columbia and hundreds of individual precincts. States with big Indian reservations have provided a sort of controlled experiment in the differences between federal agents, who did not record, and local police, who did. On the reservations, tribal officers investigate misdemeanors, while agents from the Bureau of Indian Affairs and the F.B.I. investigate major crimes such as murder, rape, and arson. Once charged, the suspect faces indictment in federal court, generally in a major city off the reservation. Paul Charlton, a former U.S. Attorney for Arizona, recalls many trials in which even the most minimally competent defense lawyer would know enough to contrast the behavior of F.B.I. agents with that of the local police. In “long, excruciating cross-examinations,” those lawyers would ask agents if the Bureau owned a recording device; if it was small enough to take to the Navajo reservation; if the device had an On button; if the agents knew how to use the On button … and on and on, until the agents’ refusal to record the interrogation seemed nothing short of ridiculous.
“So we would either lose cases, plea down cases, or find some lesser charge,” Charlton said. He got so tired of the situation that he ordered all federal investigators in Arizona to record interrogations, the rules notwithstanding. That helped to put him on the wrong side of the U.S. Attorney General at the time, Alberto Gonzales, who eventually dismissed him along with eight other U.S. Attorneys in a controversial mass firing in 2006.
An even more useful “lab” for comparison is an investigation conducted by a joint federal/state team. The state agent tape-records Jane Smith’s interview; the federal agent just takes handwritten notes. In discovery, you may then get from the Government the state-agent’s tape and the federal agent’s 302 of the same interview. The discrepancies can be fertile ground for cross-examination and for motions to compel production of the federal agent’s handwritten notes.
In an age of iPhones and voice-over-internet-protocols, is there any longer a meaningful reason for criminal interviews to not be recorded? Witness interviews are often the basis for federal false-statement charges under 18 U.S.C 1001. What is at least part of the evidence that the statements are “false,” according to the Government? Because the agent gets on the stand and says, “Here is what the witness said to me, as reflected in my 302 [or my notes].” If a trial seeks the truth, would we not rather know what the witness said, actually?
If a false statement is about untruth, cannot jurors also handle the truth?
When the past is dug up in documentaries (or docudramas), events are often sensationalized. This practice is of long pedigree: Shakespeare was not above amping up an old story when it suited his needs. Unfortunately, few filmmakers are at Shakespeare’s level, and the sensationalism ends up being no more than that. The viewer has no better sense of the past than he did when he began. The only sense the viewer has is the sense that she has been had.
On the other hand, from time to time a documentary digs up the past but cools down the facts, making them approachable in a way that would have been impossible at the time. The participants have aged or died; passions have cooled; and political or emotional scar tissue has formed.
Such is the latter case with the recently released ESPN “30 for 30” film about the Duke lacrosse case, Fantastic Lies.
Produced by Marina Zenovich with only a modest amount of cooperation from the players and their families and essentially no cooperation from anyone else, the film is superb. It is commendable for reasons of both art and entertainment, but there are lessons to be drawn from Fantastic Lies to the benefit of American corporations and business people who think they understand some of their most treasured institutions, including two at the heart of the film: the criminal justice system and the elite university.
No joy. (AP Photo/Gretchen Ertl)
In case you have been lost in Donald Trump’s hair for the last dozen years, the Duke lacrosse case involved a group of varsity lacrosse players at Duke who held a party. Two strippers were paid to provide entertainment at the party. One of them, an African-American woman named Crystal Mangum, claimed that she had been sexually assaulted, verbally abused and threatened with racist epithets.
The case ignited a PC firestorm and witch-hunt, a hunt that would have been academic tragicomedy were it not for the local district attorney in Durham, Mike Nifong, who indicted three players. The lacrosse coach was forced to resign, the season was canceled and the national media had a feeding frenzy.
Mr. Nifong, very attentive now.
Nifong was ultimately shown to have withheld exculpatory evidence that demonstrated conclusively that Mangum had not been assaulted by any person at the party. He was disbarred, the players exonerated and lacrosse reinstated at Duke.
Zenovich tells the story almost exclusively through the combination of the words of the (relatively few) participants and witnesses who would speak with her, plus contemporaneous footage of court appearances, lacrosse games, social media posts and state bar disciplinary proceedings. It is a narrative presented with skill, calmness and wonder at how such hysteria happens.
Those observations were largely in the context of the much larger problem wrought by the federal Department of Education’s Office of Civil Rights (or “OCR”). The OCR interprets (or misinterprets) Title IX to force colleges and universities to hold Star Chamber-like proceedings in matters of campus sexual assault. (Consider this March 10, 2016 letter — Lankford Letter DOE Title IX — from Senator James Lankford (R-OK), Chairman of the Subcommittee on Regulatory Affairs and Federal Management, Senate Committee on Homeland Security and Governmental Affairs).
Setting aside the significant implications for students and universities, what can we take away as business people from Fantastic Lies? Here are five thoughts to post in the break room:
Real charges can result from actual innocence. Do not assume, because you have not done anything wrong, that you will not be charged with and convicted of a crime. Innocent people are charged with and convicted of crimes every month (and probably every week) across the country. Prosecutors are not clairvoyant, and they are not divine even when they act in good faith. When they act in bad faith (which is rare), or when they are negligent, incompetent or just don’t understand the business events they are looking at (which is much more common), innocent people will get charged with crimes, and juries will sometimes convict them.
Do not assume that “the truth will out.” The Government has overwhelming discretionary power. The proceedings of a grand jury are secret, manifested by the fact that a witness’s lawyer may not even accompany her client into the room. Agents are intimidating, and citizens think they have to speak with him. The disclosure of “Brady” information – that is, exculpatory information — is wholly within the Government’s control. This is precisely the kind of information that Nifong, the prosecutor in the Duke lacrosse case, withheld. (If you have doubts about whether these sorts of things happen with troubling frequency, read Criminal Law 2.0 by federal court of appeals judge Alex Kozinski. It first appeared in the Georgetown Law Journal Annual Review of Criminal Procedure, but do not worry. It is written in clear, plain English).
Fight back, early. The players and parents in Fantastic Lies did not fully understand what was happening until it was too late. Just as a parent or student cannot rely upon bland reassurances from education bureaucrats in crisis, a corporation or executive cannot put too much weight on comforting words and hinted support from agents, regulators or prosecutors. Assume that something bad is happening and do something about it.
Shut up. When one is investigated, the impulse to share one’s innocence is almost overwhelming. Especially in a high-profile investigation, that impulse will rarely be rewarded because your words will be twisted, compressed and taken out of context.
Before electronic court filings.
I hope you have money. The defendant students in the Duke lacrosse case did not win simply because they were innocent. They won because their parents were able to afford a team of some of the best criminal defense lawyers in North Carolina. For the purposes of this discussion, the difference between the Duke lacrosse players and the Scottsboro Boys is not race. The difference is cash on hand.
The Innocence Project
If you are moved by the film, as I was, you may want to look into the work of The Innocence Project, which “was founded in 1992 by Barry C. Scheck and Peter J. Neufeld at the Benjamin N. Cardozo School of Law at Yeshiva University to assist prisoners who could be proven innocent through DNA testing. To date, more than 300 people in the United States have been exonerated by DNA testing, including 20 who served time on death row.”
Here is more reaction to Fantastic Lies, from the lacrosse community and elsewhere:
It does not help that the most recent symbol of the Fifth Amendment is The Joker:
The First Amendment.
The Fifth Amendment.
There has been plenty of news coverage about Martin Shkreli, “pharma bro” and alleged securities fraudster, and his appearance before Congress. (Examples are here, here and here). The proceeding itself was snarky, entertaining and time-wasting:
Congressional testimony is political theater, no more and no less, but some observations are in order for us non-Joker citizens, as well.
As a refresher, it never hurts to take a look at what the Constitution actually says:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
White-collar lawyer Sara Kropf has an excellent post here on Shkreli’s invocation of his Fifth Amendment rights. She notes:
Congress does this All. The. Time. And every time it is a colossal waste of time and taxpayer dollars. If Congress wants to investigate drug prices, then do that. But don’t haul someone before a committee to testify, knowing that he will take the Fifth. It’s a constitutional right, for goodness’ sake. There’s an ongoing criminal investigation, and any lawyer worth her salt would tell him to take it.
Law professor, former AUSA and blogger Randall Eliason has an extensive piece here about various aspects of the Shkreli saga:
Shkreli’s attorney made it clear in advance of the hearing that Shkreli would invoke his Fifth Amendment right against self-incrimination. That was no surprise. Even though the hearing was not specifically about Shkreli’s criminal case, there would be too much risk that something he said might end up facilitating his own prosecution. Almost any lawyer would likely give him the same advice.
Shkreli’s lawyer asked that his client be excused from attending the hearing, since he was not going to be able to answer questions. But Congress insisted that he appear, threatening him with additional criminal sanctions if he ignored the subpoena. And so, in a familiar Washington theater production, Shkreli sat before the committee, with his attorney in the “I am not a potted plant” seat directly behind him, and repeatedly invoked his right to remain silent in response to every question.
For corporations, executives and businesspersons of all stripes, there is a great deal to learn from Congressional investigations:
As the former Special Counsel to House Committee on Banking and Financial Services for the Whitewater investigation involving President and Mrs. Clinton, I have written before about the perils (and weirdnesses) of Congressional testimony: Lessons From An Ex-Congressional Lawyer:
Although the Congress respects constitutional privileges (e.g., the Fifth Amendment privilege against self-incrimination), it does not officially recognize common-law protections such as the attorney-client privilege or the work-product doctrine. Rather, many committees will often take the position that recognition of such privileges is discretionary with the committee. As a practical matter, however, committee counsel and staff will often accept a well-grounded privilege claim. Companies that are the target of major parallel investigations will often waive common-law privilege, either to show good faith and cooperation, or as part of a settlement with the government.
Unlike a criminal defendant, a witness before a Congressional committee cannot refuse to testify altogether, but must rather invoke the privilege in response to specific questions.
Remarkably, the theater can be simultaneously stressful and boring:
Because most people are familiar with Congressional investigations only through television, they assume that if they are caught up in an investigation they will be summoned to testify before a committee like John Dean or Oliver North, with cameras clicking amid vigorous partisan drama. Although your client may indeed be called to testify in a public hearing — and you should prepare as though your client will be called — it is more likely that constraints of time, the demands of the media, and political pressure and compromise having little to do with your client will result in your client never being called. If your client testifies, remember that in many instances the committee members’ “questions” are not actually designed to elicit information from the witness. Rather, questioning is often more like speech-making designed to maximize camera time on the questioner or to score political points against the opposition.
Despite Mr. Shkreli’s cartoonish image – and it may be nothing more than that, just an image – there is something refreshing when one witnesses defiance, with constitutional grounding, in the face of massed political power. The Members’ frustration arose not so much from Shkreli’s attitude as from the fact that the Members knew they lacked the political will to actually hold him in contempt (and then to try and convince the United States Attorney for the District of Columbia to prosecute him).
That lack of will, coupled with the fact that Congressional hearings are political theater, means that such events are not the best teaching grounds for lawyers or clients. Nevertheless, we can all learn a few lessons from Mr. Shkreli.
Getting carded, back when there was no casual Friday.
First, don’t be a chicken about keeping your mouth shut: your business, your family and your liberty depend on it. People in business, whether senior executives, middle managers or line employees, recoil from the notion of refusing to answer questions from any representative of the Government (including Members of Congress). Separately, I have elsewhere described this impulse as The Efrem Zimbalist, Jr. Syndrome:
“Everyone will think I did it” is a common theme, as is “I can just explain it so they can understand it.” The former statement is likely true, but it is irrelevant if you can avoid prison or a business-crippling indictment, fine or government-contracting debarment. The latter statement is almost never true: by the time a Government agent wants your statement, he or she already has a pretty good idea of what he or she understands.
And let your lawyer toot your horn.
Second, in declining to speak to the Government, be civil and professional, but cool. “Cool” not like, say, Miles Davis, but “cool” as in “calm” or “settled.” Investigators, agents and regulators can be very persistent and can make you feel as if it’s un-American to not speak with them.
Third, follow your lawyer’s instructions. It is surprising how many otherwise prudent, savvy businesspeople will keep talking after their lawyer has counseled them to not do so. In the Times video embedded above, even Mr. Shkreli says that he he will follow his lawyer’s advice.
I have previously blogged on Professor Brandon Garrett (UVA Law) who have carved out an academic niche on how the Government deals with corporate crime, particularly large corporate crime (the too big to jail group). See e.g., Judge Jed Rakoff Reviews Brandon Garrett’s Book on Too Big to Jail: How Prosecutors Compromise with Corporations (Federal Tax Crimes Blog 2/10/15), here. At the risk of oversimplifying his arguments, I summarize them in part relevant to this blog entry: When the Government goes after corporate misconduct, it too often focuses only on the corporation in terms of criminal sanctions and not the individuals, particularly those higher up the chain, who committed the underlying conduct. Corporations cannot go to jail; individuals can. Prosecuting and convicting individuals in addition to corporations could, he thinks, provide more front-end incentive for individuals to forego illegal conduct within the corporations. However, as fans of tax crimes know at least anecdotally, it is hard to convict higher level corporate officers for conduct that their underlings actually commit. The poster child example is the acquittal of Raoul Weil, a high-level UBS banker who “remoted” himself from the dirty work of actually servicing U.S. taxpayers seeking to evade U.S. tax. See e.g., Raoul Weil Found Not Guilty (Federal Tax Crimes 11/3/14; 11/6/14).
Michael Landon (“Little Joe Cartwright”) being served with a subpoena (1968)
Another useful Townsend post addresses a common issue — the Government’s attempt to muzzle the recipients of subpoenas:
In United States v. Gigliotti, 2015 U.S. Dist. LEXIS _____ (ED NY 12/23/15), here, Judge Dearie denied a motion to suppress evidence obtained pursuant to grand jury subpoena that unlawfully contained the following: YOU ARE HEREBY DIRECTED NOT TO DISCLOSE THE EXISTENCE OF THIS SUBPOENA, AS IT MAY IMPEDE AN ONGOING INVESTIGATION.
In a 10-page report titled “Rigged Justice: 2016,” the U.S. Senator’s staff cited 20 cases in which they say prosecutors showed “timidity” by not pursuing individuals for civil or criminal misdeeds. No executives at Citigroup Inc., JPMorgan Chase & Co., or Deutsche Bank AG were accused of wrongdoing in cases alleging rigged currency markets and the misleading of investors, her office wrote in the document released Friday. The investigations led to their companies paying billions of dollars in penalties.
Senator Warren will have none of the Yates Memo, thank you:
The report even dismisses a recent U.S. Justice Department announcement, known as the Yates memo, in which Deputy Attorney General Sally Quillian Yates heralded a new direction by telling prosecutors to embark on investigations by focusing on people, not companies. “Both before and after this DOJ announcement, accountability for corporate crimes has been shockingly weak,” Warren’s office wrote.
“Shocking to whom” is a good question, but it’s all good for the white-collar bar. Here is her report.
Good Practices and Bad
A miscalculated penalty, perhaps.
From the Harvard Law School Forum on Corporate Governance and Financial Regulation and Jon Eisenberg, a partner in the Government Enforcement practice at K&L Gates LLP, here is a useful article (with cases and charts) about the SEC’s use of civil monetary penalties. Tellingly, and sadly, the authors point out that “these decisions might not survive appellate scrutiny . . . but very few respondents appeal their sanctions all the way to the D.C. Circuit.”
Deferred-prosecution agreements often impose corporate monitors. Should the reports of such monitors be kept confidential? A federal judge ordered the release of the HSBC monitor’s report, over the object of both HSBC and DOJ:
A federal judge has ordered the release of a report detailing how well HSBC Holdings Plc has complied with anti-money laundering requirements imposed by U.S. regulators when the British bank was fined $1.92 billion three years ago.
Thursday’s order by U.S. District Judge John Gleeson in Brooklyn is a defeat for HSBC and the U.S. Department of Justice, which complained the release could make it easier to launder money, including for terrorism, and discourage cooperation with law enforcement.
“This case implicates matters of great public concern and is therefore one which the public has an interest in overseeing,” Gleeson wrote, citing the public’s constitutional right of access under the First Amendment.
I cannot speak to the terrorism angle, but cooperation (and thus, monitoring) both work best when company employees have some comfort that what they say and do will be held in confidence, at least within reasonable parameters. The public’s oversight interest is real, but surely an organization that has paid billions in fines and is living with a monitor is being “overseen” to a reasonable extent, especially when that oversight requires continued cooperation to be effective.
It is not a raven, but there is a bird in Thomas Hardy’s poem “The Darkling Thrush”:
I leant upon a coppice gate When Frost was spectre-grey, And Winter’s dregs made desolate The weakening eye of day. The tangled bine-stems scored the sky Like strings of broken lyres, And all mankind that haunted nigh Had sought their household fires.
The land’s sharp features seemed to be The Century’s corpse outleant, His crypt the cloudy canopy, The wind his death-lament. The ancient pulse of germ and birth Was shrunken hard and dry, And every spirit upon earth Seemed fervourless as I.
At once a voice arose among The bleak twigs overhead In a full-hearted evensong Of joy illimited; An aged thrush, frail, gaunt, and small, In blast-beruffled plume, Had chosen thus to fling his soul Upon the growing gloom.
So little cause for carolings Of such ecstatic sound Was written on terrestrial things Afar or nigh around, That I could think there trembled through His happy good-night air Some blessed Hope, whereof he knew And I was unaware.
Crime Noir and Miles Davis
It’s Miles. It’s cool.
On the subject of crime, Apple Music must have intuited that I like noir-ish fiction and cool jazz. It directed to me a set of Miles Davis that included “Ascenseur pour l’echafaud” (1958), a French crime film by Louis Malle released in the States as Elevator To The Scaffold (or Lift To The Scaffold in the U.K.) Davis’s horn on the title track is as evocative as it gets, as seen here:
Wishing It Were Fiction: Duke Lacrosse and Due Process
On Sunday, March 13, at 9 p.m. ET, ESPN’s acclaimed “30 for 30” film series will present Fantastic Lies, a film about the the Duke lacrosse case. Here is an interview with the producer, Marina Zenovich.
We have written about the Duke lacrosse case before, here and here.
Depends on how we sell it.
In opening statements and closing arguments, the genuine is good. The cornball or the obscure, on the other hand, are bad. The same is true of our written work. As noted by Philip Corbett, master of the After Deadline blog in the New York Times:
[A]n overreliance on anecdotal openings — especially the classic “stranger in the lead” approach — can make our prose feel shopworn rather than vivid. This is particularly true when readers encounter unfamiliar names at the top of two or more adjacent stories, whether in print or online.
The BBC’s classical music site published this article about the Victorians and Christmas stories. The Charles Dickens classic A Christmas Carol is among them, but so too some more obscure (at least, obscure to me) work by George Eliot and others.
As novelist John Irving noted in an introduction to A Christmas Carol, the work is essentially a Christian ghost story about human transformation:
Scrooge is such a pillar of skepticism, he at first resists believing in Marley’s Ghost. “You may be an undigested bit of beef, a blot of mustard, a crumb of cheese, a fragment of an underdone potato. There’s more of gravy than of grave about you, whatever you are!” Yet Scrooge is converted; beyond the seasonal lessons of Christian charity, A Christmas Carol teaches us that a man—even a man as hard as Ebenezer Scrooge—can change. What is heartening about the change in Scrooge is that he learns to love his fellowman; in the politically correct language of our insipid times, Scrooge learns to be more caring. But, typical of Dickens, Scrooge has undergone a deeper transformation; that he is persuaded to believe in ghosts, for example, means that Scrooge has been miraculously returned to his childhood—and to a child’s powers of imagination and make-believe.
Most of us have seen so many renditions of A Christmas Carol that we imagine we know the story, but how long has it been since we’ve actually read it? Each Christmas, we are assaulted with a new Carol; indeed, we’re fortunate if all we see is the delightful Alastair Sim. One year, we suffer through some treacle6 in a western setting; Scrooge is a grizzled cattle baron, tediously unkind to his cows. Another year, poor Tiny Tim hobbles about in the Bronx or in Brooklyn; old Ebenezer is an unrepentant slum landlord. . . . We should spare ourselves these sentimentalized enactments and reread the original—or read it for the first time, as the case may be.
The Alistair Sim version is a classic, but my favorite is the 1984 version with George C. Scott as Scrooge:
As noted in this Economist book review, the Victorians were also great — perhaps the greatest — hymn-writers, unafflicted by the grinning, emoji-level landscape of most “Contemporary Christian Music”:
[H]ymn-books were the bestsellers of the age. Hymns were a vital part of popular culture: their texts appeared on posters, tombstones and in school reading-books and they were the primary means of teaching the principles of Christianity to adults and children alike. “Let me write the hymns of the church,” one preacher maintained, “and I care not who writes the theology.”
A marvelous contemporary antidote to the milktoast of much CCM is found in the work of Indelible Grace, a movement that “re-tunes” old hymns — many of them Victorian. Here is a look:
The tunes, although all within the same rootsy bandwith, are lovely, and the theology solid.
Unless you have been on a monastic retreat or hidden as carefully as Hillary Clinton’s email server, you have by now likely read reports and analyses of the “Yates Memorandum,” a policy document issued by Deputy Attorney General Sally Yates entitled “Individual Accountability for Corporate Wrongdoing.”
In this essay, I focus on one particular aspect that may be crucial for companies, their boards of directors, their audit committees and law department: The timing of potential disclosures to the Government and the degree to which outside counsel needs to have comfort that what he or she is relating to the Government on the company’s behalf is more or less reliable.
The Yates Memo sets out six principles that the Department of Justice intends to apply in a renewed (or apparently renewed) emphasis on the prosecution of individuals in the context of the investigation of corporate wrongdoing.
The key summary paragraph is as follows:
The guidance in this memo reflects six key steps to strengthen our pursuit of individual corporate wrongdoing, some of which reflect policy shifts and each of which is described in greater detail below: (1) in order to qualify for any cooperation credit, corporations must provide to the Department all relevant facts relating to the individuals responsible for the misconduct; (2) criminal and civil corporate investigations should focus on individuals from the inception of the investigation; (3) criminal and civil attorneys handling corporate investigations should be in routine communication with one another; (4) absent extraordinary circumstances or approved departmental policy, the Department will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation; (5) Department attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases, and should memorialize any declinations as to individuals in such cases; and (6) civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual’s ability to pay.
There has been considerable criticism of DOJ from politicians, editorialists and judges (see the Southern District of New York’s Judge Jed Rakoff here and a note here and here about Judge William H. Pauley) over the paucity of individual prosecutions arising from the financial crisis. Assuming that the memorandum is more than a simple public relations effort to deflect that criticism, a number of points come to mind.
Difficult to keep calm, actually.
First, if implemented, the Yates Memo will cause more corporate officers and employees to lawyer up, and lawyer up earlier, then at any time since the savings and loan crisis. As a white-collar and internal-investigations lawyer with looming college tuition to pay for, I have no objection to such an outcome, but it may actually make getting the facts out of an internal investigation more difficult, not less.
Second, the renewed focus on facts pertaining to individuals will potentially make it very uncomfortable for boards of directors, audit committees, chief legal officers and other decision-makers who will more frequently be tempted to throw company officers and employees under the bus than previously. To cite Three Dog Night from their eponymous 1969 album, “one is the loneliest number.”
Third, although DOJ officials in speeches have said repeatedly that they are not trying to force corporate outside counsel to be police officers, there is more than a whiff of that impulse in the Yates Memo. Such an approach raises multiple potential conflict of interest problems.
Civil discovery. Criminal facts?
Fourth, the focus on individual wrongdoing (and disclosure of facts relating to individual wrongdoing) is to apply equally in the civil arena. Companies and businesspeople have far more civil problems then criminal. The ultimate effect of the Yates Memo may be felt most dangerously (and most expensively) in the civil context.
Fifth, it is unclear (at least to me) whether and to what extent the Yates Memo will require outside counsel conducting an internal investigation to modify a standard Upjohn instruction. (We have previously discussed Upjohn warnings in these posts). In other words, does company counsel need to add an explicit statement that, should the witness reveal facts about himself or herself that appear to be a reasonable basis of criminal liability (theirs or the company’s), the lawyer will probably tote those facts over to the Government?
As a practical matter for corporations and those who guide and advise them, as well as for lawyers who represent individual officers and employees, the most delicate task will be trying to figure out at what point in time does one pull the disclosure trigger with regard to evidence of individual wrongdoing.
In other words, when do you know what it is that you know? And, what if you make your early or premature disclosure to the Government but you are wrong?
Off to college? Or, to a meeting at the U.S. Attorney’s Office?
As I write this, my daughter is a high school senior in the midst of college applications. These applications come at the tail end of a lengthy period of campus visits, alumni interviews, webpage reading and prayer. We have been diligent, and the process by turns exhilarating, disappointing and expensive.
What struck me is how different things look now than when we began. At some point, one must “land the plane” – that is, make a decision – whether one is in the midst of a college search process or an internal corporate investigation. Yet, had my daughter been forced to apply very early in the process to, say, what were her top five choices then, we would have been in an artificially different (and most likely more disadvantageous) situation from the one in which we find ourselves today.
The Yates Memo will put boards of directors, audit committees and chief legal officers is in a similar position of having to make a call unnaturally early in an internal investigation in hopes of reaping the harvest of cooperation. As most anyone who is been through an internal investigation can attest, the factual landscape and legal conclusions are often different (but more accurate) late in the day. The next months and years under the Yates Memo will tell, but it would be a shame if, in order to grasp at cooperation’s life jacket, American businesses and their legal advisers are put in a situation that helps neither the legitimate aims of Government prosecutions nor those companies’ shareholders and stakeholders.
SIDEBAR: In the context of governmental policy, it is easy to talk about the prosecution of individuals without putting a face (and a life) to a name. With faceless defendants, we sometimes forget what investigations and trials can do to individuals and their families.
Tom Hayes and wife Sarah Tighe
In this five-part series in the Wall Street Journal, David Enrich lays out the prosecution of LIBOR trader Tom Hayes. “The Unraveling of Tom Hayes” bears a careful read.