“Fantastic Lies” and Corporate Criminal Prosecution

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.

30-For-30On 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.

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.

Very attentive now.

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.

I have written about the Duke lacrosse case and white-collar crime problems before: Dear Colleagues All: University Discipline, Sexual Assault and The Department of Education and Title IX, University Discipline, Sexual Assault and Parallel Proceedings and The Old College Try, and The New College Tribunal.

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.

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

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:


The Five Best Ways for Your Client’s Employees to Get Indicted

A glass of ice water, please.

A glass of ice water, please.

The nice folks at the Birmingham Bar Association (and white-collar criminal defense lawyer Steve Shaw in particular) invited me to deliver a lunchtime CLE on a white-collar subject of my choice.  The topic ended up being “The Five Best Ways for Your Client’s Employees to Get Indicted.”

One could come up with more ways your client’s employees could get indicted, but life is short.

Hunting for 18 U.S.C. Section 1001.

Hunting for 18 U.S.C. Section 1001.

Here is the handout: The Five Best Ways for Your Client’s Employees to Get Indicted. Download it.  It’s not legal advice, but it has some fairly useful material about bribery, obstruction and honest-services fraud in the Eleventh Circuit, as well as quotes from Men In Black (1997).  We spent a fair amount of time on practical considerations in working with businesspeople involved in white-collar investigations, including this piece: Stalking Horses, Pitchfork Crowds, Narrow Neckties, Mr. Rogers’s Slippers and Indicted Employees: 6 Steps To Dodge Being Deweyed.

All about the ratings.

All about the ratings.

And, there was even a caution against the “Efrem Zimbalist, Jr. Syndrome,” named after the star of the old television series The FBI.  Watch this 140-second video on the Efrem Zimbalist, Jr. Syndrome.


White-Collar Felon Registries, Hester Prynne and The Drive-By Truckers

No white-collar recidivism here.

No white-collar recidivism here.

Although one must admire the historicist sensibilities of a state legislature that just reinstated the firing squad  as a methodology for execution, the Utah legislature’s passage of a bill to create a white-collar crime registry modeled on sex offender registries is unwise where it is not silly.

As a New York Times article notes:

With just a point and a click, you can browse a face book of felons, a new government website that will warn of the danger these criminals pose to society.

Only these are not the faces of sex offenders and serial killers. These criminals are mortgage schemers and inside traders, most likely armed with nothing more than an M.B.A. or a law degree.

Their faces will soon appear online courtesy of the Utah Legislature, which on Wednesday approved a measure to build the nation’s first white-collar offender registry, appending a scarlet letter of sorts on the state’s financial felons. The registry — quirky even by the standards of a legislature that this week reinstated firing squads as a method of execution — will be replete with a “a recent photograph” of Utah’s white-collar offenders and, in case they try to run or hide, their “date of birth, height, weight, and eye and hair color.”

What are the issues here?
Lillian Gish (1893 - 1993) as Hester Prynne, white-collar felon.

Lillian Gish (1893 – 1993) as Hester Prynne, white-collar felon.

First, a white-collar registry would be “scarlet-lettering” without an offsetting benefit.  Politically satisfying, perhaps, but it is a “pitchfork” approach that upends proportionality and other counterweights that prevent a criminal justice system from turning into an inquisitorial system.  (We have written about pitchfork mentalities before: Stalking Horses, Pitchfork Crowds, Narrow Neckties, Mr. Rogers’s Slippers and Indicted Employees: 6 Steps To Dodge Being Deweyed and  Why Innocent People Plead Guilty: Judge Rakoff, Eddie Coyle, Albert Camus and Sweet Dreams of Oppression).

On the subject of The Scarlet Letter, consider Hawthorne and the core meaning of the story, which is about confession and redemption rather than legalism’s unforgetting (and unforgiving) recollection of sin.
With regard to “unforgetting,” a registry is  the inverse of the “right to be forgotten” movement, as represented by a recent Eurpean Union case.  Consider this from a Mockingbird article, Divine Memory and The Right to Be Forgotten:
In Hawthorne’s Scarlet Letter, protagonist adulterer Hester Prynne is saddled with a big red letter “A” to be worn on her chest at all times. The letter acts as a shaming reminder to the greater community to keep their sexuality in line. While Hawthorne goes on to make Hester a dignified example of the power of confession, top hits of Google searches aren’t unlike a big letter “a” for many whose mistakes just won’t go away. Identity is at the core of both stories . . . .  Should a foreclosure 16 years ago be part of the plaintiff’s identity? Who gets to control the ever-important first impression- the politician on his rebound or the Google search?
I've got my eye on you.

I’ve got my eye on you.

 

Second, a registry is most justified when there is a substantial body of evidence that offenders are very likely to recidivate; where the victim-population is peculiarly and legally unable to protect itself; and where the harm is not meaningfully compensable.  Sexual depredation of children satisfies these criteria, and thus we see widespread legal and cultural acceptance of sex-offender registries.

 

Although the data is mixed, white-collar felons, like nonviolent offenders in general, have a relatively low rate of recidivism.  Further, white-collar offenders commit money-crimes, and money-remedies are available if the offender is solvent (admittedly, sometimes a big “if”).

He's made his list, he's checked it twice and now it's on the internet.

He’s made his list, he’s checked it twice and now it’s on the internet.

Third, are citizens of Utah, like minors, peculiarly unable to be clothed with legal rights and responsibilities?  Paternalism may have its place, but here? The legislative assumption seems to be that Utahans in general and Mormons in particular are so naive or insular that they need to be protected from themselves.  Or, in the words of a Guardian (UK) article: Utah creates white-collar crime registry to protect ‘trusting’ Mormon population.

What next? Hasidic Jews? Southern Baptists? Episcopalians?  (The last denomination is unfair. I have no data on the subject, but anecdotal evidence suggests that many of the most temporarily successful white-collar offenders are, in fact, Episcopalians).
Fourth, the Utah Attorney General claims that white-collar crime is “epidemic” in Utah.  Again, from the Times:
“White-collar crime is an epidemic in Utah,” said Sean Reyes, the state’s attorney general who formulated the idea for the registry when he was a defense lawyer, “representing some of these bad guys.” A former mixed martial arts fighter who has a metal plate lodged in his eye socket from a basketball injury, Mr. Reyes noted that while violent crimes were devastating, many “physical wounds heal,” whereas white-collar crimes “can forever deplete your life savings.”
A handful of large dollar loss offenses do not an “epidemic” make.  According to the United States Sentencing Commission, fraud offenses account for only 5.2% of federal inmates — less than firearms offenses (18%) or pornography and prostitution (5.7%), and a figure dwarfed by drug offenses (51%).  The Bernie Madoffs of the world grab eye-popping dollar headlines, but the median loss in fraud offenses committed by offenders in the federal prison population is $696,295 — not a small sum, but a figure which is likely driven misleadingly high by Madoff-like numbers.  Even if it there were an epidemic, the solution is carefully crafted, clear laws that criminalize wrongful activities in a manner consistent with commonly accepted norms in Anglo American criminal law history.

A challenge getting to the keyboard.

A challenge getting to the keyboard.

Fifth, there is no reason to expect that the registry will provide any particular deterrence.  If the prospect of prison, financial ruin, loss of reputation, bankruptcy, dissolution of family, loss of law or CPA licenses, and debarment from federal contracting does not dissuade a bad actor, being put on a website will have little effect.

 

 

 

 

Law should be just, or it is not law, but on occasion it should be tempered with mercy, as the Drive-By Truckers point out in Mercy Buckets:

 


Why Innocent People Plead Guilty: Judge Rakoff, Eddie Coyle, Albert Camus and Sweet Dreams of Oppression

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.

Judge Jed Rakoff

Judge Jed Rakoff

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.

Dark WatersJudge Rakoff explains why it is really the prosecutor, rather than the judge, who sets the sentence:

[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).”

"Now, you're sure this is voluntary and everything?"

“Now, you’re sure this is voluntary and everything?”

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.

Cooperation, indeed.

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).

A grubby world, plea-bargaining.

A grubby world, plea-bargaining.

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.

The Fall

The Fall

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 Meditation On Independence Day

Oh, say, Can you still see plea-bargaining reform?

Oh, say, Can you still see plea-bargaining reform?

We all like the Fourth of July; most of us want it to mean something beyond cookouts and fireworks.  When my children were little, I would read aloud to them the entire Declaration of Independence, an oration they found both alarming and distracting. The nation’s Independence Day celebration has changed over time, as has its people (alarmed or distracted) and their culture.

We have an Independence Day in film and in song, works of art that speak to a patriotism grounded in a corporate concept (national independence) and in a citizen concept (individual independence).

Here in the early portion of the 21st-century, it is the domestic liberty of individuals, rather than the specter of foreign domination from across the seas, that is the most fruitful subject for reflection this Independence Day.  At the end, you can decide which is more apt: alarm or distraction.

In the Declaration of Independence, the list of grievances against King George III and his agents is lengthy and detailed, a fact that my young children frequently brought to my attention as I declaimed in our den.

Need to read the fine print.

Need to read the fine print.

In general, however, the revolution that followed the Declaration was a “conservative” revolution, at least compared to successor-revolutions such as the French and the Bolshevik.  In terms of its genesis, the complaints in the Declaration were the complaints of Englishmen who had been denied English rights.

Further, many of the concepts underpinning those rights – for example, the nature of the sovereign and his subservience to God, the more powerful King – arose out of the Protestant Reformation in Europe.  There were many flavors and strains of what we call “Protestant,” but one of several unifying factors was an emphasis on the individual’s direct access to the divine, rather than a requirement that the individual proceed through a priest or a bureaucratic episcopate that could grant or withhold dispensation, including that ultimate dispensation of liberty and property rights — the freedom and freehold of the kingdom of God.  The individual believer could now read a sacred text (the Bible) for himself or herself.  Priest, prince, pope: all potentates were sidelined.

In our pluralistic, post–Christendom culture, what bearing (if any) does this historical, cultural and religious context have this Independence Day?

On this Independence Day, the concept of “independence” is informed by two consistent drumbeats.

First, the national-security state that has grown ever since September 11 shows no sign of abating.

Still got the briefcase, though.

Still got the briefcase, though.

Second, the editorial, social-media and congressional criticism of prosecutorial handling of post-recession financial institutions and white-collar defendants feeds an apparently deep-seated need to assign particular blame for generalized ills.

For a white-collar defense lawyer, he confluence of these two drumbeats is deafening. For business people – indeed, for all citizens – the scales have been tipped further in favor of the state and its investigatory and prosecutorial apparatus.  Substantively, there continues an arguable over- criminalization of undesirable but not, at heart, criminal conduct, a legislative spasm driven by an unseemly result–orientation.

The grand jury has long been unmoored from its original function as a buffer between the sovereign and subject.  Reform of the grand jury and the plea-bargaining system is overdue but unlikely to happen in the near-term.  (On the other hand, Martin Luther thought he was merely trying to reform the church and did not intend, as Winston Churchill said in another context, to set Europe ablaze).

Maybe I needed the microphones.

Maybe I needed the microphones.

In addition, the “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).

Such impulses and shifts in presumptions do damage due process and, ultimately, the status of a free people.  Citizens in white-collar professions are often the first to clamor for more national security externally and more law-enforcement domestically.  In many circumstances, of course, that clarion call is entirely appropriate, even vital, to our survival as a nation.  On the other hand, the call can only be answered by the raw exercise of sovereign power.  One need not be a Protestant Reformer or a Declaration subscriber to wonder if another call, this one for reflection and vigilance, is not perhaps overdue if we are to maintain those liberties — that “independence” — that we all treasure.

Happy Independence Day.