• 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,  Securities Fraud

    The Martoma Trial and Character Evidence in White-Collar Trials

    In the trial of former SAC hedge fund manager Mathew Martoma, the dispute over getting kicked out of Harvard Law School  is worth noting for what evidence we have juries consider at white-collar trials and what we don’t: In 1999, Mr. Martoma was expelled from Harvard for creating a false transcript when he applied for a clerkship with a federal judge, court papers unsealed on Thursday showed. Mr. Martoma used a computer program to change several grades from B’s to A’s, including one in criminal law, and then sent the forged transcript to 23 judges as part of the application process. Then, during a Harvard disciplinary hearing to determine whether…

  • Costs, Budgets and Fees,  Trials, Judges and Jurors

    Take The Deal or Go To Trial? Exactly.

    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. Indeed, when a federal judge…

  • Costs, Budgets and Fees,  Evidence,  Trials, Judges and Jurors

    Civil Lessons From Criminal Trials (on YouTube)

    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.  

  • Bank Fraud,  Evidence,  Insider Trading,  Securities Fraud,  Trials, Judges and Jurors

    New DOJ Cases From the Financial Crisis? Look For This Criminal/Civil Hybrid

    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…

  • Trials, Judges and Jurors

    Closing Arguments In The Whitey Bulger Trial

    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.