Wednesday, November 30, 2005

The Sad Elgindy Story

The Wall Street Jrl, in a superb article authored by John R. Emshwiller here, tells the story of Anthony Elgindy and the tragedy faced by his family as a result of his conviction in a white collar case. Clearly the most moving part of this story is the dilemma faced by his wife in deciding which 2 of 3 children would accompany her into the prison to see their father.  Street crime cases have faced these issues for years, often with little or no acknowledgment.  Perhaps one of the benefits of the focus on white collar offenders and the increased sentences (and in this case the sending of a convicted person to prison prior to sentencing) is that the media is now noticing the effect of these cases on third parties, and most importantly the children.

But white collar crime cases also are unique as pointed out in this article. According to the article it seems the government (article says "federal officials") is offering money (keeping some of their money) to the family if Anthony Elgindy acknowledges a loss of one million dollars, an amount that could increase his sentence.   Would a prosecutor really place a person in the position of agreeing to something that may risk them a higher sentence so that their children would have money  while they were incarcerated?   Talk about prosecutorial power - this is the ultimate power - or shall I say - abuse of power.


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Would a prosecutor really place a person in the position of agreeing to something that may risk them a higher sentence so that their children would have money while they were incarcerated?

But isn't this a common practice in blue-collar crimes as well? Most of us have seen these two scenarios:

1.: Husband and Wife live together with children. Wife knows about Husband's illegal activities but never helps him. Husband is indicted. Prosecutors make it very clear (even without explicity saying it) that if Husband refused to cooperate, then Wife will be indicted. Which means the children will be put into foster care.

2.: Mom knows that Son is into drugs but doesn't know the extent of his involvement. I.e., Mom thinks Son is using, but doesn't know that he's dealing. After Son is indicted, prosecutor tells him: Give us what we want or we'll seize Mom's home since it was used as part of your drug activities.

It's disgusting, and it turns my stomach, but it's common enough practice. What can be done to stop it? Nothing I've thought of. Prosecutors are absolutely immune from suit for prosecutorial "functions" (which includes plea offers), so my idea of suing them under a familiar relationships theory is a non-starter.

The only way to end these abuses is to end plea bargaining. Plea bargains are inherently done under duress, and therefore should never be upheld. (Yes, I know the case law. But plea bargains can never be voluntary, at least as understood in other contexts. Show me any non-crim law contract case whereby a person is threatened with imprisonment - and this means the implicit threat of prison rape - and where the courts uphold the contract.)

Posted by: Mike | Nov 29, 2005 10:05:41 PM

For a country that is so proud of democracy and justice, it is said that so many cases go of-track because their eagerness to lay blame.

Posted by: henk wondergem | Dec 7, 2005 6:54:56 PM

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