July 2, 2011
Writing About Criminal Punishment?
If you're writing about a criminal punishment-related topic this summer, consider participating in the ABA-AALS joint conference "Reducing Our Reliance on Incarceration," October 27-28 in D.C. In addition to a fantastic line-up of confirmed speakers, there will be an opportunity to present works-in-progress in a roundtable format, scheduled for the first afternoon of the conference, Oct. 27th. Be on the look-out later this summer for a Call for Submissions (helpfully timed to coincide to when you might be uploading your abstract to Express-o). If you'd like more information before then, feel free to contact Giovanna Shay at firstname.lastname@example.org.
July 1, 2011
Jim Dwyer, William K. Rashbaum, & John Eligonny, NYTimes, Strauss-Kahn Is Released as Case Teeters
See Lawrence Goldman's commentary below.
Brady From Heaven For Strauss-Kahn
Dominique Straus-Kahn has received from the district attorney what most defendants never get -- early Brady material. Today's New York Times reports that "Strauss-Kahn Case Seen as Near Collapse" because prosecution investigators have discovered "major holes in the credibility" of the housekeeper who claims he sexually attacked her.
The District Attorney should be commended for the early disclosure of the purported victim's credibility problems. I cannot help wonder, however, whether such disclosure would have been made -- certainly so early -- in a case where the defendant did not have such considerable legal and investigative firepower that it could be predicted that his team would itself eventually discover at least some of the victim's credibility problems. I also would love to know, and am sure I never will, what the discussions were in the prosecutor's office about whether and when to disclose this Brady material. In this connection, I also wonder whether the resignation of the head of the sex crimes unit a few days ago is just a coincidence.
Brady revelations by prosecutors are rarely easily made, especially when they are serious enough, as may well be the case here, to destroy the prosecution case. It goes against the grain for any competitor -- and most prosecutors are competitors trying to win -- to provide information that will hurt his case, let alone destroy it. And I have no doubt that at least some of the prosecutors involved in this case still firmly believe that Strauss-Kahn did sexually attack the housekeeper and that all this stuff about money laundering and the like is besides the point or, in legal parlance, immateriaL.
Experienced prosecutors know that they can almost always get away with Brady violations. The number of prosecutions or disciplinary actions against prosecutors for Brady violations is miniscule. Appellate courts are generally loathe to reverse convictions for anything but egregious Brady violations, generally finding that the withheld information was immaterial. There are certainly generally well-meaning prosecutors who would have withheld the exculpatory information here to increase their chances of achieving what they believe is the just result. And there are others less well-meaning, and far fewer, who would have withheld the information to advance their own careers.
Response by Professor Larry Ribstein here. (esp)
UK Bribery Act - Today's the Day
Chris Johnson, law.com, U.K. Bribery Act Finally Takes Effect
June 30, 2011
In the News & Around the Blogosphere
Jason Grant, The Star-Ledger, Ex-Jersey City deputy mayor's bribery appeal hinges on judge's instructions
DOJ Press Release, Miami Doctor Sentenced to 235 Months in Prison for Medicare Fraud Scheme
Gary Klein, Mercury News.com, Mill Valley man convicted of embezzling $1.4 million from Silicon Valley tech firm
Harvey A. Silverglate, Forbes, Federal Prosecutors, John Edwards, and God’s Law
Mike Scarcella, BLT Blog, Judge Orders DLA Piper To Give Documents To Clemens
David Ingram, BLT Blog, Appeals Court Rules for DOJ in Corruption Case
Amanda Bronstad, law.com, Reversal possible in Lindsey FCPA case
Jenna Greene, BLT Blog, $230M Returned to the U.S. in SEC Case That Could Test Agency's Reach
Mike Scarcella, BLT Blog, DOJ Urges Judge to Reject Honors Program Hiring Suit
Mike Scarcella, BLT Blog, Ted Stevens Prosecutors Urge Appeals Court To Vacate Contempt Order
June 29, 2011
The Ultimate Cross-Examination
Hats off to Attorney Ira London for a cross-examination that everyone can learn from here.
The Wrong Judge and the Lindsey FCPA Trial Bombshell
If I were a federal prosecutor in the Central District of California I would not want to tick off Judge Howard Matz. But that's just what federal prosecutors in the Lindsey Manufacturing FCPA case have done. Matz is an exceptionally thoughtful and intelligent jurist. He is also a former AUSA whose son is a Central District prosecutor. So Matz knows when things aren't right. And things aren't right in the Lindsey Manufacturing case. On Monday, during post-verdict proceedings, AUSA Doug Miller revealed that the government had inadvertently violated a court order by failing to turn over portions of FBI Special Agent Susan Guernsey's grand jury testimony to the defense. Matz was shocked, according to this excellent LAW360 story (subscription required) by Zach Winnick. "I shouldn't be shocked, because it's not the first time you and your colleagues have trailed into court with excuses and benign mea culpas." Ouch.
It is clear from Winnick's piece that Matz has long been troubled with various aspects of the government's presentation. Now Matz is ordering additional briefing on whether the guilty verdicts should be overturned and the case dismissed. My colleague Ellen Podgor posted here in March on earlier Brady problems encountered by the government. And Winnick reported here in May (in LAW360) on Judge Matz's harsh criticism of some of the government's summary charts. Matz called the charts, "ill-advised, misleading, and shockingly incomplete." Oral arguments on the defense motions to dismiss are set for September 8.
June 28, 2011
Sentences Beyond a Lifetime
Benjamin Weiser, NYTimes, Judge Explains 150-Year Sentence for Madoff has a fascinating story of some of the surrounding conversations prior to the Madoff sentencing. But there is one aspect that continues to trouble me when sentences given are beyond the lifetime of the individual serving the sentence - that is, does this undervalue our sentencing process. Some may claim that it sends a more pronounced message when the sentence is of such a stinging length. And clearly a long sentence was warranted here. But what does it say about our sentencing process when individuals are given sentences that are not only beyond the lifetime of the defendant, but also beyond any person's lifetime. I have to wonder if it makes a mockery of the sentencing process.
Addendum - Doug Berman, Sentencing Law & Policy,Judge Denny Chin and Bernie Madoff talk about a sentence of 150 years
What If Ruth and Bernie Madoff Had Divorced?
White-collar defense attorneys are often asked by clients accused of or investigated for theft or fraud, or by their client’s spouses, what could be done to protect the spouse financially. My advice had always been for the spouse to seek advice from a knowledgeable and independent debtor-creditor attorney. As a result of the New York Court of Appeals ruling in CFTC v. Walsh last week, my current advice is to consult with a knowledgeable and independent matrimonial attorney.
In that case, the CFTC and SEC attempted to claw back from a divorced "innocent spouse" funds allegedly stolen by her ex-husband that she received in a divorce settlement. The state court, basing its decision largely on issues of finality and fair consideration (and perhaps that a different ruling would disproportionately harm women), ruled that a wife uninvolved and unaware of her husband’s criminality could not be required to disgorge the proceeds to the theft victims.
The case came to the New York court in a peculiar posture. The federal Second Circuit Court of Appeals referred the case to the New York State court to answer two questions of law, one of which the state court modified before answering.
I am far from sure that the Second Circuit will be comfortable ratifying the state court’s ruling, which I personally find questionable on both logical and policy grounds. If, however, the Second Circuit does accept the state court’s reasoning and precludes disgorgement from the wife, fraudsters fearful of eventual apprehension and considerate of their spouses might seek or encourage divorce to assure the spouse’s secure financial future. And if Bernie and Ruth Madoff had been divorced before Bernie’s fraud was revealed, under such a ruling Ruth Madoff (presumably an "innocent spouse") would now be a very, very, very rich woman.
June 27, 2011
Blagojevich Found Guilty on 17 of 20 counts - Joining The Illinois Governor Convicted Felon Club
The press is reporting here, here, here, and here, that Former Illinois Governor Rod Blagojevich has been found guilty of 17 counts, not guilty on one count, and two counts with no verdict. This was the second trial, the first ending in a hung jury except for one count. The jury was out this time for 10 days. Blagojevich did not testify in the first trial, but did testify this time.
A second trial was an enormous benefit to the government. They had the opportunity to re-evaluate their case and to see that keeping it simple was the smarter choice. They also had the conviction on one count to allow them to start cross-examination against him with the "convicted felon question."
Why is it that so many Illinois Governors wind up as convicted felons? (e.g. Otto Kerner, Dan Walker, George Ryan, and Rod Blagojevich).
Addendum - Doug Berman, Sentencing Law and Policy Blog here
June 26, 2011
Underenforcement of Corporate and White-Collar Fines and Penalties
A new article on SSRN by Martin H. Pritikin and Ezra Ross, titled "The Collection Gap: Underenforcement of Corporate and White-Collar Fines and Penalties" - forthcoming in Yale Law & Policy Review. SSRN's abstract:
Civil and criminal monetary sanctions (fines, penalties, and restitution orders) are primary tools in the enforcement activities of the modern administrative state, particularly in the context of corporate wrongdoing. Although the enforcement literature debates the fairness and efficiency of imposing corporate sanctions, once imposed, those sanctions must be collected to be effective. Yet federal and state agencies are leaving untold billions in collectible fines unrecovered. This is a problem of both theoretical and practical importance, yet it has been largely overlooked. This Article, for the first time, amasses the evidence of pervasive governmental undercollection; rebuts the argument that the problem is due to factors beyond governmental control; examines the root causes of undercollection; and recommends solutions that address the political and economic circumstances that impede reform.