Friday, July 22, 2011

In the News & Around the Blogopshere

Thursday, July 21, 2011

The Prosecutor's Pep Talk

Some folks are talking (see here and here) about Assistant AG Lanny Breuer's speech at the National District Attorneys Association Summer Conference.  He is definitely correct to say that there has been an improved DOJ on many fronts, especially discovery. (see here). The creation of a Professional Misconduct Review Commission, for one, should be applauded (see here

But I have to agree with David Oscar Marcus (Southern District of Florida Blog) (here) on a few things such as why is DOJ "opposing a change to Rule 16 (as suggested by the ABA and on July 7, by NACDL) requiring what their guidelines merely suggest." And DOJ certainly could do more - like supporting NACDL's recent discovery statute change here.

Lanny Breuer, speaking to this supportive audience said, "[c]ertain defense lawyers nevertheless continue to want to try and turn honest mistakes into instances of misconduct. This kind of gamesmanship is unfortunate."  But did the DOJ attorneys come out in these instances and say - "we made an honest mistake?"  I think it would go a long way when a mea culpa is expressed.  I think it would also go a long way when the office starts taking steps to assure that discovery rules are enforced - like agreeing that this requires statutory oversight to achieve compliance.

But we need to remember that this was the prosecutor's pep talk and his making a comment like  "[o]ur job is not just to win cases, but also to do justice in every case,” should be applauded.  We have come a long way to be hearing this important statement from a prosecutor in a key position.


July 21, 2011 in Prosecutors | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 20, 2011

Apprendi Applies to Alternate Fines Act - Corporate Fines Require Jury Determination

In the Northern District of California, the court in United States v. Au Optronics Corporation, et. al (AUO) was faced with the question of whether Apprendi applied to criminal fines that the government was seeking under the alternative fine statute, 18 U.S.C. s 3571(d). The company and nine individuals were charged with price-fixing in violation of the Sherman Act. A Superceding Indictment claimed that the government would seek a criminal fine against the corporate defendants (not the individuals)  under the alternative fine statute, which would mean that "the government could seek a fine in this case of up to $1 billion against AUO." The government sought bifurcation into separate guilt and penalty phases and also sought an "order that the evidence presented in the penalty phase need not be presented to a jury."  In essence they were arguing that Apprendi did not apply here.  

The court saw it differently then the government. Initially two circuits had found that Apprendi applied and even a declaration of the antitrust division had said it was applicable with fines.  Then came the case of Oregon v. Ice, where the Court held "that a judge could impose consecutive sentences without any jury findings beyond those of guilt."  Following this decision, the First Circuit found that criminal fines were exempt from Apprendi.

The government argued here that the First Circuit decision should be followed because "under historical practices fines fell within the sole discretion of the trial judge."

The problem for the government, however, is that they were relying on dicta from the Ice case.  Thus, the court in AUO held that Apprendi's mandate applied here.  Hon. Illston states, "[t]he magnitude and primacy of such punishment puts it in a separate class from an ordinary criminal fine imposed against a defendant who faces incarceration." (the government was seeking a fine that could amount to $1 billion, which is "ten times more than the fine authorized by the Sherman Act")

The court also denied the government's request to bifurcate the trial into a guilt phase and penalty phase, stating that "the Court is disinclined to bifurcate without a more substantial showing that a separate penalty phase will save judicial resources."

Court's Order - Download July 18 2011 Order re bifurcation motion

There are two lessons for the government here  - 1) there are consequences to overcharging, and 2) stop wasting money.  


July 20, 2011 in Antitrust, Judicial Opinions, Sentencing | Permalink | Comments (0) | TrackBack (0)

In the News & Around the Blogosphere

Tuesday, July 19, 2011

Double Jeopardy Unlikely to Bar Clemens Retrial

Much has been written in the last few days about whether the government will be precluded on double jeopardy grounds from retrying Roger Clemens. (see here, here, here, here, and here) I think the answer is relatively clear; the government will be able to try Clemens again. (Whether they should is another matter.)

The issue is to me controlled by Oregon v. Kennedy, 456 US 667 (1982), a case that makes it almost impossible for a defendant to successfully claim double jeopardy after he is granted a mistrial on his lawyer’s motion based on prosecutorial misconduct. Double jeopardy, according to the case, does not apply unless the prosecutor’s "conduct…is intended to provoke the defendant in moving for a mistrial." This narrow exception is designed to prevent a prosecutor who feels his case is going down the drain to goad defense counsel into a mistrial in the hope that the prosecution will fare better in a new trial. See, US v GAF Corp., 884 F26 670 (2d Cir 1989). Although I think Kennedy is bad law since it precludes any sanction against the government where the exception does not apply, it is the prevailing law. .

Under the Kennedy standard, Judge Walton, in order to grant a mistrial, must find not only that the behavior of the prosecutors was intentional, but that their intent was to goad the defense into seeking a mistrial. Arguably, the cumulation of what the judge found to be the egregious nature of the error by veteran prosecutors, the compounding of the error by leaving the excluded testimony on a screen in front of the jury during a conference with counsel, and the apparent prior disregard by the government in its opening of another ruling not to discuss drug use by other ballplayers might suggest that the error that led to a mistrial was intentional. On the hand, the declarations of the prosecutor (which ranged from justification to moderate mea culpa), the judge’s own statement about the lack of specificity of his order (apparently not directly ordering redaction of the videotape), the failure of the defense to object either before or during the playing of the videotape, the defense attorney’s positive comments about the prosecutors, and the prosecutors’ good reputation sway me to believe that their error, although unjustifiable in a case of this magnitude (at the least, they should sought judicial guidance if they felt they could rightly put in Rep. Cummings’ entire "question"), was just sloppy. In my personal determination that it was not intentional I also consider that these local and experienced prosecutors would not deliberately cross Judge Walton, who is not known to be tolerant of attorney excesses.

In any case, even if the judge were to find that the conduct of the prosecutors was intentional, it is a huge jump for him to find that their intention was not just to gain a tactical advantage, but to provoke a retrial in order to get a do-over. In view of the apparent government satisfaction with the jury, the very early stage of the trial, the absence of any obvious advantage a retrial would give the government, the defense’s hesitancy in asking for a retrial, and the government’s objection to it, I see no basis for a determination that the goal of the prosecutors was declaration of a mistrial.


July 19, 2011 | Permalink | Comments (1) | TrackBack (0)

Monday, July 18, 2011

Discovery Reform

The National Association of Criminal Defense Lawyers (NACDL) issued a news release here titled "Legislation Would Enforce Government's Duty to Disclose Favorable Information to Accused." The essense is that it calls for new legislation.  The press release states:

"To help ensure fairness in federal criminal proceedings, the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL) has endorsed model legislation drafted by NACDL’s Discovery Reform Task Force that would require the government to disclose all information favorable to the accused in relation to any issue to be determined in a federal criminal case."

 Proposed Legislation here and Commentary here.

(esp)(disclosure that this author served on the committee working on this suggested legislation)

July 18, 2011 in Defense Counsel, Investigations, Prosecutions, Prosecutors | Permalink | Comments (0) | TrackBack (0)