January 5, 2010
In the News & Around the Blogosphere
John Pacenti, Daily Business Review, law.com, Judge Denies UBS Whistleblower's Bid to Reduce Sentence
Chronicle of Higher Education,Former Louisville Dean Reportedly Will Plead Guilty to Federal Crimes (subscription)
Tampa Bay Business Jrl, Kevin J. Napper of Carlton Fields Named FBA President (Tampa Bay Chapter)
Andrew Longstreth, The American Lawyer, law.com, Rakoff Rejects BofA's 'Media Reports' Defense in SEC Case
Amir Efrati, WSJ Blog, DOJ Offers Guidance to Prevent Prosecutor Errors: But Will it Work?; Mike Scarcella, BLT Blog, DOJ Issues Discovery Guidance for Federal Prosecutors;
Peter J. Henning, NYTimes Dealbook Blog, In Galleon Cases, Timing Could Be Everything
Jenna Greene, BLT Blog, New Compliance Chief at SEC
New DOJ Discovery Policies Fall Short
In the wake of recent events that demonstrate discovery violations (see here), DOJ has issued three new policies here. It is wonderful to see that DOJ is beefing up its discovery practices and taking a hard look at what should happen in the future. It also sounds like a better management system is being considered. But that said, looking at the actual guidance memo, here are a few preliminary comments -
- After telling prosecutors that they need to familiarize themselves with Brady, Giglio and other discovery rules and statutes, the paragraph ends with a statement that this new memo "provides prospective guidance only and is not intended to have the force of law or to create or confer any rights, privileges, or benefits." Yes, this is the standard language one finds throughout the DOJ manual. But wait a minute -- although DOJ guidelines can be guidelines, these mandates are constitutional, statutory, and rules - they often do have the force of law. This fact should be emphasized to prosecutors.
- The memo states - "Prosecutors should never describe the discovery being provided as 'open file.'" The memo explains the fears of missing something. It seems odd that the DOJ doesn't want prosecutors to accept credit when they do the right thing and provide all discovery. Saying not to call it "open," for fear of missing something, implies that this is not a policy that recognizes the value of an "open file" system that can work well and provide efficiency. And taking this one step further -- if it is not acknowledged as an "open discovery" practice, and something is missed - will it sound any better to the accused who failed to receive their discovery material?
- The memo gives no real guidance as to when a prosecutor has to turn over Jencks material, and leaves it to the individual offices to create their individual rules. It is ironic that DOJ wants sentencing consistency, but doesn't want discovery consistency. Should a defendant in Wyoming have different rights to witness statements than the defendant in New York?
- It is good to see memorialization of witness statements is important. But only turning over "material variances in a witness's statements?" Shouldn't all variances be turned over?
- It is interesting how the memo provides an extensive review process of discovery material - will this hold up getting the materials to defense counsel? Also will defense counsel be given an equal amount of time to review these materials and time to conduct additional investigation that may be warranted as a result of the materials provided?
- And yes, it is important to protect witnesses and national security - but should DOJ be the one deciding when they think they can withhold evidence? Shouldn't that be for neutral parties like the judiciary?
It is good to see DOJ trying to do a better job than past administrations, but what really needs to be done is setting forth clearer rules and statutes by independent parties, as opposed to a working group made up of "senior prosecutors from throughout the Department and from United States’ Attorney Offices, law enforcement representatives, and information technology professionals," so that our system does "do justice" as desired by AG Holder.
January 4, 2010
The Passing of Bill Olis
I could not have said it better than Tom Kirkendall at Houston Clear Thinkers here. I, for one, will certainly miss the wonderful emails that Bill sent to me. I never met him, but he clearly was the winner and now named for him - Collar for the Bill Olis Best Parent Award. To Jamie and his family - my condolences.
Three Strikes for DOJ
Here is an interesting interview that Amy Goodman (Democracy Now) has with Scott Horton concerning the dismissal of the charges related to Blackwater (and the killing of individuals in Baghdad's Nisoor Square in 2007).
It is difficult to proceed on a case when there's Garrity/Kastigar issues, especially a high profile one that has been openly discussed in the media. And certainly there are unanswered questions here - like should DOJ have planned for possible problems with evidence and established a clear taint team to make certain that Kastigar issues could be avoided - it is easy to Monday morning quarterback with these questions. But Hon. Urbina does make a few statements in the Order that are disturbing as to DOJ. He notes the failure to abide by DOJ internal policy (see here). He also states that:
"In their zeal to bring charges against the defendant in this case, the prosecutors and investigators aggressively sought out statements that defendants had been compelled to make to government investigators in the immediate aftermath of the shooting and in the subsequent investigation. In so doing, the government's trial team repeatedly disregarded warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team on Garrity and Kastigar issues, that this course of action threatened the viability of the prosecution."
One looks at this case, and then at the dismissal of the Stevens case by DOJ - In the latter the new DOJ does the right thing - it dismisses the case when discovery violations come to light. Couple this with the recent dismissal of the Ruehle case, also involving government misconduct (see here). That's three strikes for DOJ.
But all three of these are high profile cases. One has to wonder if prosecutorial misconduct may have occurred in the cases that do not get noticed. Could there be discovery or other violations in other cases that may not receive media attention? AG Holder has made significant steps to turn around the DOJ ( see here), but perhaps an independent body needs to examine some of the past practices of DOJ.
(esp)(w/ a hat tip to Linda Friedman Ramirez)
In the News & Around the Blogosphere
Matthew L. Wald, NYTimes, U.S. Lawyers Knew About Legal Pitfalls in Blackwater Case
Michael Van Sickler, Tampabay.com, As mortgage fraud runs rampant, meaningful prosecutions in short supply
Joe Palazzolo, Main Justice, Obama Nominates Seven More U.S. Attorneys
Andrew Ramonas, Main Justice, Senate Confirms Seven U.S. Attorneys
NYTimes (AP), T.S.A. Drops Bloggers’ Subpoenas
Katie Allen, Guardian (UK), Recession pushes white-collar crime to new highs
Steven Greenhouse, NYTimes, Shoplifters? Studies Say Keep an Eye on Workers
DNAInfo, Manhattan District Attorney Robert Morgenthau Bids Farewell After 35 Years; Noeleen G. Walder, NYLJ, law.com,New Faces to Fill Posts at Manhattan D.A.'s Office
Jesse Westbrook, Business Week, Schapiro Whipsawed By Wall Street, Lawmakers, Defers SEC Rules
January 3, 2010
End of Year Deal - UTStarcom on FCPA
DOJ Press Release, UTstarcom Inc. Agrees to Pay $1.5 Million Penalty for Acts of Foreign Bribery in China states:
"UTStarcom Inc. (UTSI) has entered into an agreement with the Department of Justice, agreeing to pay a $1.5 million fine for violations of the Foreign Corrupt Practices Act (FCPA) by providing travel and other things of value to foreign officials, specifically employees at state-owned telecommunications firms in the People’s Republic of China."
"In a related matter, UTSI reached a settlement today with the U.S. Securities and Exchange Commission under which it agreed to pay an additional $1.5 million penalty and satisfy additional obligations for a period of four years."
See also David Barboza, NYTimes, Telecom Company to Pay $3 Million in China Bribe Case