I have been drinking Negroni cocktails recently. The Negroni presents three virtues: it contains gin, it is bitter and it is simple to make (equal parts gin, Campari and sweet vermouth). Its simplicity makes it superior for quiet mixing at home or when one is faced with modestly-adept bartenders, as noted by Kevin Sintumuang in the Wall Street Journal:
“That’s it?” Yep. Boozy, bitter, bold and built right in the glass, the Negroni has become a steadfast sidekick for me when I need a proper cocktail at a not-so-proper bar, from dive to airport. And when I’m mixing at home, there’s no other drink that produces so much satisfaction with so little effort.
One place to start for a little history is Conde Nast Traveler:
Iconic bartender Gary Regan, a Brit who now makes his home in the Hudson Valley, is the go-to man for Negroni history. He recently published The Negroni: Drinking to La Dolce Vita,which traces the drink back to Florence in 1919. According to reliable lore, the cocktail was born when an Italian bartender responded to a customer’s demand for a stiffer riff on an Americano cocktail (a much-tamer mix of Campari, sweet vermouth, and club soda). The patron, Count Camillo Negroni, had picked up a taste for strong liquor while working—true story—as a rodeo clown in the American Wild West, and gave his name to the resulting concoction. Today, Regan estimates that the drink appears on “about 300 percent more cocktail lists than 10 years ago.” One caution for the uninitiated, via Negroni fan Anthony Bourdain: The drink will “hit you like a freight train after four or five.”
So I have to conclude that like the novels of F. Scott Fitzgerald, or the paintings of Henri Matisse, the Negroni has become a symbol of an older iteration of the modernist idea. Its pedigree comes with the passage of time. Just as how Matisse and his cohorts were once denounced as fauves, the insult became a badge of honor, before becoming a simple historical descriptor. The cocktail is no longer a “barbaric horror,” a bucking of antique tradition, but a part of that antique tradition itself.
It’s easier just to drink the thing and then fix another, but here’s the full post from the Subject/Object blog: On the Negroni.
Another instructional video, this time from Liquor.com:
With regard to the Negroni and films, here’s an excerpt from a post by Trevor Kensey:
“There is a thirty year age difference between us thought Mrs. Stone. Then she was ashamed of herself and by the time Paolo had emerged from the bathroom she had mixed two negronis and placed them on the glass-topped table on the still sunny terrace with a bowl of olives between. Paolo came outside with an air of abstraction. He paid no attention to the drinks, but left her sipping hers while he wandered over to the balustrade and looked moodily down into the little piazza at the top of the Spanish stairs. Mrs. Stone thought to herself, This is a time to lie low. And so she made no comment. She sipped her drink with her eyes on his grey flannel back and she thought of the night when the flannel would not stand between them.”
– Page 31, “The Roman Spring of Mrs. Stone”, Tennessee Williams.
Even its most ardent fans, myself included, must admit that the Negroni is not always enjoyable at first contact. It is a near-universal first time sipper experience that can often block one from falling in love with this stubbornly seductive cocktail. Stick with that drink and what begins by leaving a bad taste in your mouth becomes a complete joy by the time you finish your inaugural glass. By your third you will be well on your way to a lifetime of full Negroni enjoyment.
If you want to see more of Mrs. Stone [Vivien Leigh] and Paolo [Warren Beatty], here is the 1961 trailer:
Let’s close with a quote by F. Scott Fitzgerald, a man who knew a good bit about cocktails:
The bar is in full swing, and floating rounds of cocktails permeate the garden outside, until the air is alive with chatter and laughter, and casual innuendo and introductions forgotten on the spot, and enthusiastic meetings between women who never knew each other’s names.
Electronic medical records (or “EMR”) were supposed to be a boon to the provision of healthcare.
As two Boston-area physicians point out, EMR are anything but a benefit:
Electronic medical records, or EMRs, were supposed to improve the quality, safety and efficiency of health care, and provide instant access to vital patient information.
Instead, EMRs have become the bane of doctors and nurses everywhere. They are the medical equivalent of texting while driving, sucking the soul out of the practice of medicine while failing to improve care.
The additional problem for healthcare professionals is that EMR systems often auto-populate fields from the last patient visit (or even from the first patient visit). In busy clinical practices, such systems can create technically inaccurate records that do not diminish patient care but, three years later and blown up on a courtroom monitor, can be used by the Government in a criminal prosecution under a “medical necessity” theory under Medicare or a prescription-based “not for a legitimate medical purpose” theory under the Controlled Substances Act. (A physician may legally “dispense” controlled substances but, if he or she does so without a legitimate medical purpose or not in the usual course of his professional practice, he or she may be criminally prosecuted under the CSA.)
Physicians continue to face two critical questions in the uncertain case law under the federal Controlled Substances Act. First, what conduct is prohibited? Second, what intent must the physician be shown to possess in order to support a conviction? Given the government’s increasingly aggressive prosecution of physicians with regard to controlled substances, white-collar practitioners who represent a physician or other healthcare professional in a “pill mill” case understand and address these issues in pretrial briefing and in preparing their trial strategy and must do so early.
Criminal laws are supposed to give persons regulated by the law sufficient notice of what conduct, exactly, is prohibited. Criminal laws, as interpreted by courts, are also supposed to provide clear standards for mens rea (that is, the level of intent the Government must prove at trial). With regard to physicians and their prescribing practices, the federal Controlled Substances Act does neither.
With the Eleventh Circuit’s recent decision in United States v. Enmon, physicians continue to face two critical questions in the uncertain case law under the federal Controlled Substances Act. First, what conduct is prohibited? Second, what intent must the physician be shown to possess in order to support a conviction? Given the government’s increasingly aggressive prosecution of physicians with regard to controlled substances, white-collar practitioners who represent a physician or other healthcare professional in a “pill mill” case understand and address these issues in pretrial briefing and in preparing their trial strategy and must do so early.
Having been through a seven-week federal criminal “pill mill” trial, I think a lot about enforcement of the Controlled Substances Act and its effect on physicians. Aggressive enforcement effects others in healthcare as well, including management:
“It’s very hard for medical professionals and those in upper management, such as hospital CFOs, CEOs, and CMOs, to see themselves as criminals,” says Jack Sharman, partner at Lightfoot, Franklin, and White, a law firm headquartered in Birmingham, AL.
“This difficulty to perceive what someone else might think merits a criminal investigation impedes judgment and slows internal response.”
While physicians might not see themselves as criminals for managing patients’ pain or making sure they had enough pills to get through a holiday, it’s not hard for others to come to that conclusion, says Sharman.
If your recall for literature is not what it once was, In Flanders Field is a poem by John McRae, spoken from the point of view of World War I dead:
In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place, and in the sky,
The larks, still bravely singing, fly,
Scarce heard amid the guns below.
We are the dead; short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie
In Flanders fields.
Take up our quarrel with the foe!
To you from failing hands we throw
The torch; be yours to hold it high!
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.
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.