Criminal Trials. Civil Lessons.
This recent talk on Civil Lessons From Criminal Trials is primarily directed to internal counsel; what they should think about when hiring outside counsel; and how they should review that lawyer’s plan to defend and resolve the case. It may be of some interest, though, to outside counsel looking for a different perspective on handling his or her civil case.
Here is the (very short) written Handout.
As noted by the White Collar Law Prof blog, here — Fourth Circuit Rebukes United States Attorney’s Office — this criticism of a United States Attorney’s Office for repeated Brady-disclosure problems is unusual. If nothing else, the Fourth Circuit is generally a law-and-order bench, which lends the criticism greater force. Here are some highlights:
A cursory review of this Court’s opinions reveals recent consideration of at least three cases involving discovery abuse by government counsel in this district.
Mistakes happen. Flawless trials are desirable but rarely attainable. Nevertheless, the frequency of the “flubs” committed by this office raises questions regarding whether the errors are fairly characterized as unintentional.
Remedies elude defendants because discovery violations ultimately prove immaterial to the verdict. But that is not the true problem. The problem is that the government appears to be betting on the probability that reams of condemning evidence will shield defendants’ convictions on appeal such that at the trial stage, it can permissibly withhold discoverable materials and ignore false testimony. Make no mistake, however. We may find such practices “harmless” as to a specific defendant’s verdict, but as to litigants in the Eastern District of North Carolina and our justice system at large, they are anything but harmless. “No [one] in this country is so high that [she or] he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.” United States v. Lee, 106 U.S. 196, 220 (1882). The law of this country promises defendants due process, U.S. Const. amend. V, and the professional code to which attorneys are subject mandates candor to the court, see Model Rules of Prof’l Conduct R. 3.3., and fairness to opposing parties, see id. R. 3.4. Yet the United States Attorney’s office in this district seems unfazed by the fact that discovery abuses violate constitutional guarantees and misrepresentations erode faith that justice is achievable. Something must be done.
To underscore our seriousness about this matter, and to ensure that the problems are addressed, we direct the Clerk of Court to serve a copy of this opinion upon the Attorney General of the United States and the Office of Professional Responsibility for the Department of Justice. The transmittal letter should call attention to this section of the opinion.
Brady requires the Government to disclose to the defendant materially exculpatory evidence in the Government’s possession. For a refresher on the Brady rule, look here: The Brady Rule
A good summary by Peter Henning, here — DOJ Financial Crisis Cases? — about possible future cases arising from the financial crisis and the Government’s use of a FIRREA provision. In part:
But pursuing criminal cases from the financial crisis gets increasingly difficult, especially against individuals, because unlike a good bottle of wine, evidence does not age well. Memories dim and the chance of finding the “smoking gun” e-mail or recording that can help implicate a defendant in a fraudulent scheme becomes less likely with the passage of time.
Mr. Holder will more likely pursue charges under a civil statute that has become the Justice Department’s favorite tool of late against banks: 12 U.S.C. 1833a. The statute provides for civil penalties for violations “affecting a financial institution” of up to $5.5 million or the amount the defendant gained from the misconduct.
Congress enacted this provision in 1989 during the savings and loan crisis as part of the Financial Institutions Reform, Recovery and Enforcement Act to give prosecutors another tool to pursue cases involving fraud and other misconduct at banks.
The law is a hybrid: it requires prosecutors to establish that criminal conduct occurred while using the lower civil burden of proof to establish the violation. That makes it easier for the Justice Department to make its case and can even allow a court to make a favorable ruling based solely on written evidence without a trial.
Section 1833a contains other favorable measures for the government. The law extended the statute of limitations for a host of banking crimes to 10 years from the usual 5-year period, so the Justice Department faces little time pressure in pursuing cases involving the mortgage market during the lead up to the financial crisis.
The statute only requires that the violation affect a financial institution, a term that has been broadly construed in recent district court decisions. Last week, Judge Jed S. Rakoff of Federal District Court in Manhattan rejected a challenge by Bank of America to a lawsuit involving the sale of faulty mortgages by its Countrywide Financial subsidiary. He found that the financial institution affected by the fraud could be Bank of America itself, so that even a self-inflicted wound could be the basis for pursuing a civil penalty action.
Scan through Walt Pavlo’s white-collar news collection, here — 500 Pearl Street
Note especially the article on “Trump University.”
“Civil Lessons From Criminal Trials,” here: http://www.trial.com/cle/courses/2012-ch/sharman.htm.
The video lasts 20 minutes, but be patient: business people who defend corporate civil cases can learn a great deal from white-collar criminal trials.
“Federal Prosecutor Disciplined for Making False Statements.”
Brady non-disclosure remains a problem.
Looking forward to Friday. I’m speaking on “Civil Lessons From Criminal Trials” at the Network of Trial Law Firms “Litigation In A New York Minute” one-day CLE at the City Bar building in New York.
In parallel proceedings, the civil case is frequently stayed pending the outcome of the criminal case. Sometimes, the stay can significantly hamper the trial preparation of a defendant in the criminal proceeding (for example, by restricting access to cooperating witnesses). SAC Trader Seeks Access To Some Witnesses In SEC Civil Case – Law Blog – WSJ
How does the court best balance these principles?
Closing arguments in the Whitey Bulger trial here: Closing Arguments in Bulger Trial
The argument that the Government witnesses were “paid” with leniency rings true enough but, with guys nicknamed “The Executioner” and the like, the jury can discount a good bit and still come out with a conviction.
A fascinating trial, though, with an old-school gloss: no emails, no texts, no high-def surveillance. Just guys in track suits, talking about murder — and often committing it.