White-Collar Motive, Gun Crazy Movie

Gun Crazy (1950)

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 he] do it?”

The question of motive in white-collar cases is not an idle one but, rather, has implications for how prosecutors charge; how juries hear evidence; how defense lawyers defend; and how judges sentence.

But first, a little about this very strange, very cool movie.

The most famous scene is the bank robbery, which is one, long 7-minute shot.  It’s long, so you may want to come back to it:

 According to Wikipedia:

The bank heist sequence was shot entirely in one long take in Montrose, California, with no one besides the principal actors and people inside the bank alerted to the operation. This one-take shot included the sequence of driving into town to the bank, distracting and then knocking out a patrolman, and making the get-away. This was done by simulating the interior of a sedan with a stretch Cadillac with room enough to mount the camera and a jockey’s saddle for the cameraman on a greased two-by-twelve board in the back. [The director] kept it fresh by having the actors improvise their dialogue.

In other words, when actor John Dall hopes aloud that there is parking place, he isn’t kidding: other than the people inside the bank, nobody knew that there was a movie being made or a bank robbery about to be staged, and no parking space had been reserved.

And what is the point of this for us white-collar readers?

The point is that almost nobody starts out to be a white-collar offender, any more than Bart starts out to be a bank robber.  People rarely say on Monday: “Note to self – commit mail fraud by the end of the week.”  The question is less one of “intent” and more one of “motive.”

Academic analysis bears upon the question of motive in ways inconsistent with popular thinking.  Consider Harvard Business School professor Eugene Soltes, from the introduction to his fine volume Why They Do It: Inside the Mind of the White-Collar Criminal (2016):

Many people, federal prosecutors, scholars, and media commentators claim that executives make decisions, including criminal ones, through explicit cost – benefit calculation.  Although such deliberate reasoning is consistent with the way many business decisions are made, this exclamation seems that odds with how these former leaders made the choices that eventually led them to prison.  Mini we’re not mindfully weighing the expected benefits against the expected costs. If they had been, even the remote chance of being caught and sent to prison, upending their otherwise comfortable lives, would have weighed heavily on their conscience.  But I didn’t see this. Instead, I found that they expanded surprisingly little effort deliberating the consequences of their actions. They seem to have reached their decisions to commit crimes with little thought or reflection. In many cases, it was difficult to say that they had ever really “decided” to commit a crime at all.

Business crime?

Soltes goes on to say later in the book:

The prevailing ideas around reducing white – collar criminality rely on the assessment that executives are reasoning and calculative when they decide to commit and illegal act.

The emphasis on viewing cost – benefit analysis as a psychological model of choice rather than as simply a description of behavior has led to a particular notion of why once successful and intelligent executives commit white – collar crime long – namely, that these executives make thoughtful and deliberative calculations to break the law when doing so serves their needs and desires.  They are not making hasty decisions with clouded judgment.  Their personal failure lies in reasoning that the illicit choice is the ” appropriate” one.

 [T]he trouble with this theory is that it doesn’t seem to match especially well with how executives who engage in white-collar crime actually think.

Why does this matter?

After all, many people (and almost all prosecutors) would argue that the “why” of things does not matter in the criminal context.  In other words, they say, although “intent” is relevant, “motive” is not.  The only important question, under this approach, is whether the person charged had sufficient “culpable intent” or a “guilty mind.”  Under this view, “motive” is neither inculpatory nor exculpatory, even though the Federal Rules of evidence do allow, under certain circumstances, evidence to be admitted as proof of motive.  (Consider Federal Rule of Evidence 404(b), which allows bad acts to be offered as evidence of motive).

But motive does matter.  It matters for charging decisions.  It matters for how juries hear evidence in the courtroom and how lawyers speak with them.  And it matters for sentencing.

Closed-door proceedings.

Charging Decisions

Prosecutors have discretion, as they should, with regard to whom to charge (and for what).  If the cost-benefit model that Soltes describes is the governing lens through which a charging decision is made, then it is reasonable to expect that there will be over-charging (or at least more aggressive charging) as compared to an approach that, in a more nuanced fashion, appreciates the way business people actually make decisions.  If I believe that your action is the result of a careful, cold cost-benefit analysis, I will conclude, other things being equal, that a more serious charge is due.  As you sow, so shall you reap.

On the other hand, if I understand that rather than cost-benefit analysis what I am seeing is something more akin to business negligence, I may reasonably decide that a less serious charge (or no charge at all) is due. In Soltes’s words, if what I as the prosecutor see is “little effort deliberating the consequences of [one’s] actions,” I may think differently: after all, negligence, even gross negligence, is not normally the province of the criminal courts.

Maybe a cutaway would help.

How Juries Hear

Motive colors the jury’s intake of evidence, and the prevailing zeitgeist of cost-benefit analysis works against the presumption of innocence (itself a largely extinct species, as I have discussed here and here and here.

Why is this so?

Distrust of business — and especially of large organizations, global institutions and the financial-services industry — is high among jurors across multiple demographics and political orientations.  The caricature of the cold, calculating “fat cat” businessperson fits neatly with popular suppositions — and, sometimes, conspiracy theories — about business and finance.  No amount of pretrial questionnaires or voir dire can address these deep-seated concerns with any regular success.  At trial, the Government understandably seeks to tap into these veins of distrust and fear.  And, once the jury hears at least some evidence confirming its initial biases, it is almost impossible, even for the most skilled defense lawyer, to turn them around.

On the other hand, if the jury rejects “cost-benefit” assumptions and believes that, in general, most white-collar defendants are not “reasoning and calculative” when they act (Soltes again), two things may happen.

First, the near-extinct presumption of innocence may be revived.

Second, if even some members of the jury conclude that the defendant was mindless (or just stupid), the chances increase that evidence offered by the Government will be examined more critically.

Just do the math.

Sentencing

If cost-benefit analysis is a religion in white-collar cases, the fraud tables and the concept of “loss” in the federal Sentencing Guidelines constitute its liturgy.  Were we to adopt a more realistic understanding of business decisionmaking in the context of white-collar offenses, we would reconsider the content and deployment of at least portions of the Guidelines.

The loss table in USSG 2B1.1.(b) is just math, a form of cost-benefit bracketing. The table attempts to impose a “cost” to a victim that it considers (or the Sentencing Commission considers) commensurate with a defendant’s “benefit.”

Laypersons are always surprised to learn that “loss” under the Guidelines does not mean “loss.”  In fact, “loss” can mean “no loss.”  (The dollar amount of loss to someone that the court believes the defendant “intended” to cause can be sufficient, even if there is no actual dollar loss to anyone). In a cost-benefit analytical regime, this idea of notional loss may be tolerable: we assume a calculation on the part of the business defendant and thus are more willing to accept a notional loss.

A more realistic view of business decisonmaking would go a long way towards restoring balance is an unbalanced white-collar system.

And, even if you disagree with me, you really should watch Gun Crazy.

Perhaps, like Annie, we all just “want things, a lot of things, big things.”  The question is: When do we go to prison for it?

 


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

Nope. No opioids here.

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.

Brandon Essig

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 tissue injuries and even prophylactically for post-operative situations where the practitioner knows that the recovery typically, but not always, involves pain. 

However, the medical community in the United States, and indeed society as a whole, is also now facing the reality that the side effects of opioid medications can be devastating. When misused and abused, opioids can have the same ill effects on society as any other illicit drug—addiction, crime, overdose, massive public health costs and death. In other words, society is now grappling with the dual realities of opioid medication: 1 – its use as an effective pain management tool is proven and here to stay; and 2 – its dangers and risks are also proven and must be contained. 

Medical practitioners who prescribe opioid medications as part of their treatment of patients in pain are caught in the middle of this struggle. Unfortunately for them, one of the primary ways society has chosen to address the dangers and risks of opioids is through legal action—both civil and criminal—against the healthcare practitioners who prescribe them to their patients. Therefore, physicians and other practitioners who prescribe controlled substances are participating in what is perhaps the most high-risk practice of medicine today. 

Read the entire article here.  (The byline also bears my name, but all I did was review the draft with a see-through in hand).

The opioid issue is not going away.  As  Caleb Hawley notes, “we all got problems/we all got pain”:

 

 

 


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

 Balance in the law?

Balance in the law?

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 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.

And my mens rea is unknown, too.

And my mens rea is unknown, too.

Read the entire article: Questioning The Controlled Substances Act After Enmon


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

"In Flanders fields . . . ." (via Zyance)

“In Flanders fields . . . .”
(via Zyance)

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.

Health Leaders MediaHere is the full text of my interview with Health Leaders Media:What the Crackdown on Painkiller Prescribing Means for HR

 

John McRae (1872-1918)

John McRae (1872-1918)

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.

 


“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:



Lawyer Presentations Without PowerPoint: Charles Laughton and The Fiery Furnace

Charles Laughton

Charles Laughton

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 instrument, I prefer the translation “sackbutt” to “trigon”, but I was not asked:

King Nebuchadnezzar made an image of gold, whose height was sixty cubitsand its breadth six cubits. He set it up on the plain of Dura, in the province of Babylon. Then King Nebuchadnezzar sent to gather the satraps, the prefects, and the governors, the counselors, the treasurers, the justices, the magistrates, and all the officials of the provinces to come to the dedication of the image that King Nebuchadnezzar had set up.  Then the satraps, the prefects, and the governors, the counselors, the treasurers, the justices, the magistrates, and all the officials of the provinces gathered for the dedication of the image that King Nebuchadnezzar had set up. And they stood before the image that Nebuchadnezzar had set up. And the herald proclaimed aloud, “You are commanded, O peoples, nations, and languages, that when you hear the sound of the horn, pipe, lyre, trigon, harp, bagpipe, and every kind of music, you are to fall down and worship the golden image that King Nebuchadnezzar has set up. And whoever does not fall down and worship shall immediately be cast into a burning fiery furnace.” Therefore, as soon as all the peoples heard the sound of the horn, pipe, lyre, trigon, harp, bagpipe, and every kind of music, all the peoples, nations, and languages fell down and worshiped the golden image that King Nebuchadnezzar had set up.

Therefore at that time certain Chaldeans came forward and maliciously accused the Jews. They declared to King Nebuchadnezzar, “O king, live forever!  You, O king, have made a decree, that every man who hears the sound of the horn, pipe, lyre, trigon, harp, bagpipe, and every kind of music, shall fall down and worship the golden image.  And whoever does not fall down and worship shall be cast into a burning fiery furnace. There are certain Jews whom you have appointed over the affairs of the province of Babylon: Shadrach, Meshach, and Abednego. These men, O king, pay no attention to you; they do not serve your gods or worship the golden image that you have set up.”

Then Nebuchadnezzar in furious rage commanded that Shadrach, Meshach, and Abednego be brought. So they brought these men before the king. Nebuchadnezzar answered and said to them, “Is it true, O Shadrach, Meshach, and Abednego, that you do not serve my gods or worship the golden image that I have set up? Now if you are ready when you hear the sound of the horn, pipe, lyre, trigon, harp, bagpipe, and every kind of music, to fall down and worship the image that I have made, well and good. But if you do not worship, you shall immediately be cast into a burning fiery furnace. And who is the god who will deliver you out of my hands?”

Shadrach, Meshach, and Abednego answered and said to the king, “O Nebuchadnezzar, we have no need to answer you in this matter. If this be so, our God whom we serve is able to deliver us from the burning fiery furnace, and he will deliver us out of your hand, O king.But if not, be it known to you, O king, that we will not serve your gods or worship the golden image that you have set up.”

Then Nebuchadnezzar was filled with fury, and the expression of his face was changed against Shadrach, Meshach, and Abednego. He ordered the furnace heated seven times more than it was usually heated. And he ordered some of the mighty men of his army to bind Shadrach, Meshach, and Abednego, and to cast them into the burning fiery furnace. Then these men were bound in their cloaks, their tunics,their hats, and their other garments, and they were thrown into the burning fiery furnace. Because the king’s order was urgent and the furnace overheated, the flame of the fire killed those men who took up Shadrach, Meshach, and Abednego. And these three men, Shadrach, Meshach, and Abednego, fell bound into the burning fiery furnace.

Then King Nebuchadnezzar was astonished and rose up in haste. He declared to his counselors, “Did we not cast three men bound into the fire?” They answered and said to the king, “True, O king.” He answered and said, “But I see four men unbound, walking in the midst of the fire, and they are not hurt; and the appearance of the fourth is like a son of the gods.”

Then Nebuchadnezzar came near to the door of the burning fiery furnace; he declared, “Shadrach, Meshach, and Abednego, servants of the Most High God, come out, and come here!” Then Shadrach, Meshach, and Abednego came out from the fire.  And the satraps, the prefects, the governors, and the king’s counselors gathered together and saw that the fire had not had any power over the bodies of those men. The hair of their heads was not singed, their cloaks were not harmed, and no smell of fire had come upon them.  Nebuchadnezzar answered and said, “Blessed be the God of Shadrach, Meshach, and Abednego, who has sent his angel and delivered his servants, who trusted in him, and set aside the king’s command, and yielded up their bodies rather than serve and worship any god except their own God.  Therefore I make a decree: Any people, nation, or language that speaks anything against the God of Shadrach, Meshach, and Abednego shall be torn limb from limb, and their houses laid in ruins, for there is no other god who is able to rescue in this way.” Then the king promoted Shadrach, Meshach, and Abednego in the province of Babylon.

 


“Isn’t pretty much everyone you represent a criminal? Why use tax money for that?” | An Interview With Federal Public Defender Kevin Butler

Kevin Butler

Kevin Butler

We took a few minutes and sat down with Kevin Butler, the Federal Public Defender in the Northern District of Alabama.   Before he was appointed in 2012, the district was one of only four federal judicial districts, out of 94 nationwide, that lacked some form of public defender office to represent indigent criminal defendants.

If you are in the corporate world, I can hear you right now.  You’re reminding yourself that you are an honest businessperson.  If you are a lawyer — internal or external — you are reminding yourself that you do not represent defendants in the guns, drugs or child-porn sectors of the economy.  Better to go read the Wall Street Journal.  Or, at least, ESPN the Magazine.

Bear with us.  There is more of you here than makes you entirely comfortable.

A graduate of Cornell University, Butler received his law degree from Arizona State University.  Before coming to Birmingham, he was in the Federal Public Defender’s office in the Middle District, based in Montgomery.  During his last eight years in Montgomery, her served as the Chief Assistant Federal Public Defender.

Butler also served as an Assistant Federal Public Defender in the Eastern District of California and in the District of Nevada.

Here is an excerpt from the interview:

 1) What do FPDs do?

I believe the role of the Office of the Federal Public Defender has three key components.  First, to provide outstanding and zealous representation to indigent persons charged with federal criminal offenses.  Second, to maintain the highest level of skill and competence for all lawyers who represent the indigent through regular and consistent training.  Third, to provide public service in the form of education and outreach regarding the impact federal criminal proceedings have on the community.

2) What drew you to it?

My parents instilled in me a fundamental appreciation of an individual’s right to liberty and their right to equal protection under the law.  I have dedicated my career to helping ensure my clients afforded due process and equal protection of the law.

3)  Isn’t pretty much everyone you represent a criminal?  Why use tax money for that?

A key tenet of our legal system is fact that everyone accused of a crime by the government is presumed innocent.  Furthermore, this presumption cannot be overcome unless the government (the prosecution) proves beyond a reasonable doubt that an individual has committed an offense.  Societal and subjective beliefs regarding an individual’s guilt should never curtail or “short circuit” these tenets and they do not impact my desire to zealously represent an individual accused of a criminal offense.

4) What is your relationship like with the prosecutors?

Our criminal justice system is adversarial.   Though adversarial in Court, in this District the prosecution and the defense bar enjoy a civil and collegial relationship.  I believe all parties recognize that we have an ethical duty to zealously represent our side in criminal proceedings.
Therefore, as a rule neither party confuses zealous advocacy of their party’s interests with personal animosity.

5) Corporations can become defendants in criminal cases.  Why should American businesses pay attention to and appreciate what the FPD does?

Whether a corporation or individual has been charged with a criminal offense, more often than not, the law, the procedure, and the policy governing the criminal proceedings are the same. Therefore, an effective strategy employed by my office on behalf of an individual often translates into effective strategies for the representation of a corporation.

 * * *

What binds the Federal Public Defender client and the corporate client?

The 1970s were good to me.

The 1970s were good to me.

As the Steve Miller band pointed out in 1976, they both take the money and run.

Like a drug-dealer or the child-pornographer, the erstwhile-honest businessperson can be brought to earth like the birds in “The Decoys” by W.H. Auden (1907-1973):

Under the spell completely
They circle can serenely,
And in the tricky light
The masked hill has a purer greenness.
Their light looks fleeter.

Alas, the signal given,
Fingers on trigger tighten.
The real unlucky dove
Must smarting fall away from brightness
Its love from living.

 

Take note of two of Mr. Butler’s points: the white-collar mindset regarding “innocence” and the applicability of FPD strategies to the defense of corporations and businesspeople.

First, as we have noted elsewhere, the power of the grand jury is underestimated, and the presumption of innocence is more theory than reality.  Most people, most of the time, believe that most defendants charged with a crime probably committed the crime, yet business defendants think that, somehow, they will be believed if they can just tell their story.  This mind-set of white-collar intent causes all sorts of misdirection and wrong steps,  as in the  Zachary Warren indictment, is one of the distressing aspects of the Supreme Court’s Salinas decision.

It ought to be a crime.

It ought to be a crime.

Second, in an age when Congress often addresses social ills, real or perceived, by criminalizing heretofore lawful conduct; when some federal judges publicly complain to prosecutors about an insufficient number of heads-on-pikes over financial failures; and when agents and investigators of business-crimes use techniques and technologies formerly reserved for street offenses and organized crime, it would be surprising if FPD defensive strategy and tactics did not transfer readily to the corporate arena.

Federal Public Defenders provide a necessary service to the country.  Plus, as practitioners, we can learn a great deal from them.

 


Take The Deal or Go To Trial? Exactly.

"I know.  I should've taken the deal."

“I know. I should’ve taken the deal.”

The awful pressure to plead guilty, brought on by the significantly enhanced sentences that the Government often seeks where a defendant asserts his right to a trial, is highlighted in the media in drug cases, as here: Prosecutors Draw Fire for Sentences Called Harsh. For white-collar defendants — businesspeople who may be otherwise wholly unacquainted with the criminal justice system — the combination of mandatory minimums, ardent prosecutors and a public consciousness that prefers to blame for their woes abstractions (“Wall Street” or “the accountants” or “bankers”) rather than individual choices means that going to trial is almost impossible.  Plus, the costs can be prohibitive.

Not Rodin's "Thinker"

Not Rodin’s “Thinker”

Indeed, when a federal judge says in public that the wrong people decide who goes to prison, things have come to a head.  There is a move afoot in Congress to address sentencing, but it’s focused primarily on drugs.  Maybe, though, reform will trickle up to the businessperson’s case.