“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:


Why You Need More Email

You don't have mail, but you will.

You don’t have mail, but you will.

Actually, that’s not true.  You don’t need more email; rather, you need better email.

Other than a missive alerting you to a sale on gin at your local booze-provider, what constitutes “better” email”?

“Better” email is email alerting you to new posts from White Collar Wire.

It’s simple.

Look left. Good?

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Enter your email address in the “Susbcribe” box on the left of the home page, and click the grey “Subscribe” button.

Ad-free, too.

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Do not miss out; help us to be relevant (or, at least, to so perceive ourselves); and re-post anything about gin sales.


Flipboard Spotlight | White Collar | Nice Tie.

Flipboard

Flipboard

You may use Flipboard as a nifty way to organize news and media in which you have an interest.  (If you don’t use Flipboard, try it).

For mysterious reasons, Flipboard decided to do a “spotlight” on me as a “Magazine Maker.”  (“Magazines” are the way you organize stories in Flipboard).  Here is the story: Attorney and White Collar Wire Blogger Jack Sharman

Nice tie.

Nice tie.

My name is Jack Sharman. I’m a lawyer who blogs at White Collar Wire about white-collar criminal defense, crime fiction, cocktails and theology.

My love of narrative led me to all of those topics. Juror, reader, drinker, sinner: everyone needs a good story.

I use Flipboard “inbound” as a newsfeed and “outbound” as an aggregator of articles, blog posts and news items. I have six magazines. They range from the professional (White Collar) to the curious: Noir, for example, is an offshoot of Crime Fiction.

The first article I flipped was an article in The New York Times about the SEC (the market regulator, not the real SEC).

My favorite topic on Flipboard is white-collar crime and government investigations, but I also spend time with film noir and literature, nice resorts and lacrosse.

The best article I’ve read all week was about the jury in the Etan Patz murder trial. I know little of the record in the case, but the jurors in their post-trial interview demonstrated remarkable respect for the process and for each other.

A magazine I found on Flipboard that’s made my life better? I can’t say that any magazine has made my life “better,” but I reflect on the images in Abandoned But Not Forgotten (Gianni Mazzetti), a collection of photographs of abandoned houses, businesses, factories and other structures. It’s like Ecclesiastes for social media.

My media diet consists of Twitter lists, Tumblr, ESPN and work-pertinent blogs such as 500 Pearl Street (Walt Pavlo), White Collar Watch (Professor Peter J. Henning) and White Collar Crime Prof Blog (Professors Ellen S. Podgor and Lucian E. Dervan, and defense lawyers Lawrence S. Goldman and Solomon L. Wisenberg).

Other hits: Rap Sheet (J. Kingston Pierce) (crime fiction), Mockingbird (culture and the theology of grace), Gastronomista (Emily Arden Wells) (cocktails), About Last Night (Terry Teachout and the arts) and After Deadline (Philip B. Corbett) (writing style, usage and grammar from the New York Times). The Daily Office Lectionary, an app that tracks the Anglican cycle of prayer, is a useful tool for early morning meditation and prayer, as is the ESV Bible app. Music comes from Soundhound.

A unique productivity tip of mine is to drink no coffee and review no email before reflecting on what is actually important, rather than what the world tells me is important. (I’m not sure how “unique” that tip is, but it works better than the alternative.)

Here are the magazines I curate.  Follow any (or all).

View my Flipboard Magazine.

View my Flipboard Magazine.

View my Flipboard Magazine.

View my Flipboard Magazine.

View my Flipboard Magazine.

View my Flipboard Magazine.



White Collar Wire Now on Facebook and Tumblr

Mr. Zuckerberg now relieved to have direct access to White Collar Wire.

Mr. Zuckerberg is now relieved to have direct access to White Collar Wire.

 

With some trepidation, we finally took the plunge and established a White Collar Wire page on Facebook.

Please go over there and “like” it, “friend” it and otherwise approve us.  I promise it will contain no vacation photos, nor my childrens’ witticisms nor Vine renditions of athletic events.

 

 

 

Can I buy a second vowel?

Can I buy a second vowel?

 

 

Even better, visually, is that White Collar Wire is now on Tumblr as well.

 

 

 

 

 

Finally, for sound business-crime weekend reading on either platform, you cannot do better than Smash Detective-Cases:

Principles of corporate criminal liability.

Principles of corporate criminal liability.