• Agencies,  Trials, Judges and Jurors

    Video Guidance, Agency Guidance and White-Collar Trials

    The Lord noted that the poor will always be with us, but He may as well have been speaking of federal agency guidance documents that are sometimes used against members of the regulatory community. Here is a short video about the DOJ’s recently-promulgated “Brand Memo” and regulatory guidance documents: For a few more details about the Brand Memo, see our earlier post:    

  • Agencies,  Trials, Judges and Jurors

    Brand’s Memo and Dan’s Desk

    Last month, then-Associate Attorney General Rachel Brand issued a memorandum to Department of Justice civil lawyers concerning the circumstances under which they may and may not use federal agencies’ “guidance documents” in civil lawsuits brought by the government.  Ms. Brand has since left the department to take a position in the private sector, but her memorandum lives on and may have significant effect for American regulated businesses not only for civil litigation – its stated goal – but also for corporate criminal indictments and trials. What Does The Memo Say? The Brand Memo, which is brief, follows up on a November 16, 2017 policy memo issued by Attorney General Jeff…

  • Evidence,  FBI,  Special Counsel,  Trials, Judges and Jurors

    Special Counsel Subpoenas, FBI Agent Texts, GoGo Penguin Groove

    An unusual point arose here (at the end) regarding an FBI agent’s political text-messages and cross-examination: Jack Sharman – MSNBC – Meet the Press (Dec. 5, 2017) from LFW on Vimeo. Text Messages and FBI Agents The interview question focused on an agent in the Special Counsel’s office, Peter Strzok, and the fact that he was taken off the the investigation because of alleged anti-Trump, pro-Clinton text messages or other communications.  Congress has requested information from the Department of Justice about Agent Strzok, who was also apparently one of the agents who interviewed Hillary Clinton regarding the matter of her personal email server and who allegedly watered-down the FBI’s conclusions…

  • Crime Fiction,  Film,  Privilege,  Trials, Judges and Jurors

    White-Collar Motive, Gun Crazy Movie

    In 1950, producers Frank and Maurice King released Gun Crazy, a sometimes surreal Bonnie-and-Clyde story with an introverted, pacifist gun lover (Barton Tare, played by John Dall) and an English femme fatale sharpshooter  (Annie Laurie Starr, played by Peggy Cummins).  Carried forward by his lust for and fascination with Annie, the non-violent Bart — without thinking or planning — becomes a robber and, eventually, an accessory to murder. A classic American film noir, Gun Crazy has merited a book (Eddie Mueller’s Gun Crazy: The Origin of American Outlaw Cinema) and much commentary by film buffs.  It also gives us insight into a common question in white-collar cases: “Why did he [or she, but usually…

  • Controlled Substances Act,  Drugs,  Trials, Judges and Jurors

    Risk, Reward and Pain: Doctor Lessons from An Opioid Trial

    Opioid medications continue to be in the news, as demonstrated by the recent nationwide state attorneys-general investigation.  This situation only demands more attention from physicians and other healthcare providers who may face significant criminal sanctions. My law partner Brandon Essig recently wrote in Medical Economics: Over the past three decades, opioids have become a standard and effective component of pain management for many practitioners. They are effectively and safely prescribed in every conceivable clinical environment—primary care facilities, hospitals, pain management clinics and even dentist offices. They are prescribed to treat chronic and intractable pain, such as advanced stage cancer pain or severe burns, but they are also prescribed to treat soft…

  • Controlled Substances Act,  Drugs,  Trials, Judges and Jurors

    Mute Oracle: The Controlled Substances Act and Physicians’ Criminal Conduct

    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. Or, as my Lightfoot colleagues Brandon Essig, Jeff Doss and I put it in a recent article for Law 360: 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…

  • Controlled Substances Act,  Drugs,  Poetry,  Trials, Judges and Jurors

    Pill Mills, Poppy Flowers, Dead Poets and the Human Resources Department

    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…

  • Presumption of Innocence,  Social Media,  Trials, Judges and Jurors

    “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. 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…

  • Theology,  Trials, Judges and Jurors

    Lawyer Presentations Without PowerPoint: Charles Laughton and The Fiery Furnace

    At trial in a white-collar or civil business case, lawyers sometimes complain that the material or documents they must work with are so old, so familiar or so different from everyday language and commerce that there is no way to keep the attention of judge and jury. Not so.  Just watch as Charles Laughton reads The Fiery Furnace on the Ed Sullivan Show (1960). And, delivered decades before a PowerPoint deck, laser pointer, “elmo” or any other such dreadful presentation tool was available.  (Indeed, delivered without notes, for that matter).   In case you need a transcript go-by, here it is (from Daniel 3:1-30).  Personally, for the most obscure musical…