Wednesday, June 8, 2011
In her blog piece on June 5, 2011, Prof. Ellen Podgor asked, “[I]s the cost of cooperation worth it?” Her particular focus was on the suicide of a former Wall Street trader two days after a tape he had surreptitiously recorded as a government cooperator was played at trial.
On a more global basis, the widespread prosecutorial (and judicial) practice of giving favorable treatment in white-collar and other cases to those who cooperate with the government by informing, taping and/or testifying has had in many ways a pernicious effect on the criminal justice system, particularly in the white-collar area. It has weakened the deterrent effect by institutionalizing an escape valve from serious punishment for wrongdoers, has facilitated overcriminalization and the expansive interpretation of existing law by the Inquisition–like requirement that accused wrongdoers admit criminality in order to escape serious punishment, and it has substantially transformed the practice of criminal law, at least in the white-collar area, from an adversarial system in which defense lawyers challenged the government’s proof into one in which defense lawyers are more likely to serve as adjunct prosecutors in seeking deals for their clients to cooperate with the government.
In subsequent blogs, I hope to discuss the process and effects of cooperation in greater detail.