October 23, 2010
Lesley Clark at the Miami Herald tells the story of Abner Schoenwetter, a victim of overcriminalization, in an article titled Congress Looks at Law that Criminalizes Non-Criminal Behavior. Mr. Schoenwetter recently traveled to Washington to testify before a congressional committee. His testimony, along with others at the hearing, can be found here. Mr. Schoenwetter's case arose with an individual named David McNabb - a case involving the importation of spiny lobster tails from Honduras to the U.S. Despite the fact that the Attorney General of Honduras said that there was no violation of law, the 11the Circuit refused to reverse this conviction premised on a violation of the Lacey Act. For more discussion of this case, see my article - A New Dimension to the Prosecution of White Collar Crime: Enforcing the Extraterritorial Social Harms.
In reading the Miami Herald I couldn't help but notice the difficulties that Abbie Schoenwetter now faces. I, for one, intend to purchase something from his business here. Overcriminalization hurts real people.
October 22, 2010
Three Federal Grand Jury Reforms
I had a fun time commenting about grand jury reform yesterday at the Overcriminalization 2.0 Conference in Washington, DC--our nation's capital.
Here are three of my ideas for improving the federal grand jury's fairness. No doubt others have thought of these improvements as well.
1. All fraternization between prosecutors and grand jurors should be strictly forbidden. Federal grand jury proceedings are supposed to be on the record. But this policy can be circumvented by informal conversations between grand jurors and prosecutors, before grand jury begins or during breaks. Even if testimony is not conveyed through such informal discussions, friendship and camaraderie can develop, particularly over the long haul of a white collar investigation. This makes it far more likely that the grand jurors will bend to the prosecutor's will and resolve all doubts and issues in his/her favor. My suggestion is that the grand jurors be treated more like petit jurors, in terms of the informal contact that prosecutors are allowed to have with them. In addition to promoting fairness, such a reform should impress upon the grand jurors the seriousness and sanctity of their work.
2. All summarizing of prior evidence and testimony by the prosecution should be strictly prohibited. Federal prosecutors are not allowed to "deliberate" with the grand jury. That means they can't sit in with the grand jurors and try to sway their votes. The prohibition applies whether or not the grand jury is engaged in deliberations just prior to voting. What sometimes happens over the 18 month course of a white collar grand jury investigation is that jurors ask questions about the credibility of witnesses and the content of prior evidence and testimony. The prosecutor cannot comment upon the credibiltiy of witnesses, but can summarize prior evidence and testimony. Suppose a grand juror says, "I just don't believe this last witness, Mr. Smith. Isn't what he said inconsistent with what Mrs. Jones said?" Under current rules, the prosecutor may respond as follows. "I cannot comment upon Mr. Smith's credibility, because I cannot deliberate with you. But I am allowed to summarize prior testimony. What I can tell you is that Mr. Smith's testimony is inconsistent with Mrs. Jones' testimony and with the testimony of every other witness we have heard from, including seven of your fellow citizens and five FBI Special Agents." The ability to summarize thus inherently lends itself to potential abuse. This potential should be eliminated, and the prosecutor should be confined to telling grand jurors that they can ask to examine evidence or have prior testimony read back to them by an agent.
3. The case agent should be required to inform federal grand jurors under oath of all exculpatory information that the government is aware of. DOJ already encourages prosecutors to disclose exculpatory evidence to the grand jury and some jurisdictions require it as an ethical matter. I suggest here something further. The case agent should be required to reveal to the federal grand jurors under oath, in every case, all exculpatory information in the government's possession or that the government is aware of. This will facilitate the delivery of relevant information to the grand jurors, by forcing the prosecutor and case agent to focus on the question of exculpatory information. What could be more relevant to a grand jury's charging decision than information inconsitent with guilt? Isn't this the fair thing to do?
These three suggested reforms have at least three things in common: 1) they will improve the fairness of the grand jury process; 2) they pose no risk of physical harm or danger to any government witness or employee; and 3) they impose no significant time or cost burdens on the government.
October 19, 2010
Nick Thiros: The Lawyer for All
Nick Thiros was not only a lawyer's lawyer, but also a lawyer for so many people from all walks of life. He was the best of the best in the courtroom and he was also a mentor to newcomers. His gift was his understanding of people, and he used that ability to appreciate and care for them.
His courtroom skills were legendary. As a young prosecutor in Lake County, Indiana, I would rearrange my schedule to be in the courtroom to watch his closing arguments --as he mesmerized juries with his basic understanding of human nature. Nick T. had the gift of getting the answer he wanted from a witness. He had the rare gift of explaining his client's case for all to understand and appreciate. He found the "human" in each person. And most of all he argued to juries what he believed in and made each juror appreciate justice.
Nick Thiros was there when you needed him. He represented many a lawyer and judge, and often in difficult situations. He was so deserving of becoming a Fellow of the American Board of Criminal Lawyers (ABCL).
It was Nick Thiros who convinced me to join the National Association of Criminal Defense Lawyers (NACDL) and to this day, I am forever grateful. My heart goes out to his family and friends, as he will be missed. Rest in peace, Nick....
October 17, 2010
In the News & Around the Blogosphere
Nedra Pickler (AP), San Francisco Chronicle, Prosecutors put Abramoff associate on trial again
Philip Hilder, Houston Chronicle, Law makes it easier to blow whistle on corporate crime
Gregg Gardner, Freep.com, Ex-Delphi Execs to Go on Trial
Andy Grimm, Chicago Tribune, Vrdolyak resentenced to 10 months in prison -New judge orders ex-alderman to spend time behind bars