Tuesday, April 30, 2013
At the ABA Antirust Spring Meeting in Washington DC, Assistant Attorney General for the Antitrust Division William Baer announced a significant change in the Division’s practice of carving out of individuals from the non-prosecution protection offered in corporate plea agreements. Depending on circumstances, the Division may be willing to enter into a plea agreement with a corporation and provide non-prosecution to some, but not all, of the corporation’s executives. The Division may reserve for prosecution (carve-out) some executives it thinks are culpable, or others it whose conduct doesn’t warrant prosecution, but the individual(s) declines to cooperate. The most contentious part of the carve-out practice was that the Division would name these individuals in a public plea agreement. This could smear an executive’s reputation by signaling that they were involved in criminal conduct, but provide no way for them to clear their name. Courts upheld the practice as legal, but one court found the Division's policy "unappealing," "offensive" and a “perp walk.”
The defense bar had long lobbied for a change in this policy, especially demanding that the names of carved-out individuals not be made public. See, e.g., Victor, Farber and Duke, “The Policy Case for Eliminating The Public Identification of Carve-Outs In Antitrust Plea Agreements.” Baer, who has worked on the defense side himself, agreed. He issued a press release stating: “As part of a thorough review of the Division’s approach to corporate dispositions, we have decided to implement two changes. The Division will continue to carve out employees who we have reason to believe were involved in criminal wrongdoing and who are potential targets of our investigations. However, we will no longer carve out employees for reasons unrelated to culpability.” And, for those carved out “the Division will not include the names of carved-out employees in the plea agreement itself. Those names will be listed in an appendix, and we will ask the court for leave to file the appendix under seal.” See Statement of Assistant Attorney General Bill Baer on Changes to Antitrust Division's Carve-Out Practice Regarding Corporate Plea Agreements, April 12, 2013.
Monday, April 22, 2013
The government decision to delay Miranda warnings, and also the first appearance before a judge and the assignment of counsel, for Dzhokhar Tsarnaev, the surviving alleged Boston Marathon bomber, was a tactical one, no doubt based largely on an evaluation that any admission Tsarnaev makes is unnecessary to a government case (eyewitnesses, an admission, videotapes, possession of explosives, flight, etc.) which appears to be overwhelming.
The broad "public safety emergency exception" which the government asserts is a questionable Department of Justice attempt to expand the narrow exception announced in New York v. Quarles, 467 U.S. 649 (1984). The government's aggressive stance is based in part on a belief that Miranda does not prescribe a procedural requirement for police questioning, but is only a prerequisite for the admissibility at trial of statements made by a defendant. Under such reasoning, government agents are free to violate the dictates of Miranda (and perhaps other constitutional rights) with no harm to their case except a return to the status quo ante.
Aggressive law enforcement tactics against criminal suspects accused of particular heinous crimes, such as terrorism, murder, kidnapping and large-scale drug dealing, gradually work their way into the general law enforcement toolbox. Tactics used against drug dealers and organized crime figures, such as extensive electronic surveillance, undercover agents, forfeiture of assets and disallowance of attorneys' fees, and exceedingly high bail requests, for instance, are no longer uncommon in white collar cases.
I wonder whether the "public safety emergency exception" is so far off. If it is acceptable under this exception to allow the government to disregard Miranda and Federal Rule of Criminal Procedure 5(a)(1)(A) (requiring agents to bring one arrested before a court "without necessary delay") in order ostensibly to prevent future terrorist crimes, will it also become acceptable to detain for 48 hours and question without Miranda warnings, for instance, those who have provided inside information about unknown persons to whom they might have provided such information in order to deter imminent or future insider trading or those who have hacked computers about accomplices or others who might commit imminent or future computer crimes?
Thursday, April 11, 2013
An administrative judge for the Merit Systems Protection Board has overturned the DOJ internal decision finding reckless misconduct for violating Brady obligations by two prosecutors of Senator Ted Stevens, Joseph Bottini and James Goeke, and ordering their suspensions. See here.
The administrative judge ruled that DOJ had violated its own disciplinary procedures which require a rank-and-file DOJ attorney in the Professional Misconduct Review Unit to review OPR findings and determine whether misconduct had occurred. The career attorney who reviewed the OPR findings, Terrence Berg (now a federal district judge in Michigan), decided in favor of the prosecutors, but his ruling was reviewed and reversed by his superiors, who found that misconduct had occurred and suspensions were appropriate. Review and reversal by the superiors, said the administrative judge, was improper procedurally, and the rank-and file attorney's decision was non-reviewable and final.
I lack sufficient familiarity with administrative law to opine whether this decision is wrong (although Prof. Bennett L. Gershman has made a strong case that it is). See here. I recognize that prosecutors, like those they prosecute, are entitled to due process. However, procedural infirmities aside, the actions of the prosecutors were clear enough and serious enough to warrant on the merits a finding of misconduct and a suspension. See here.
I find it ironic that DOJ's finding of misconduct was (according to the administrative judge) based on DOJ's own procedural misconduct. More seriously, however, I find extremely troubling the notion that a DOJ prosecutor's misconduct should be finally determined by a fellow career DOJ prosecutor. Defense lawyers, for instance, are not entitled to have their alleged misconduct weighed by a fellow defense lawyer.
A prosecutor's alleged misconduct ideally should be determined by the appropriate state bar disciplinary committee, not a fellow prosecutor (or fellow prosecutors). Of course, bar disciplinary committees, as several commentators have pointed out, have been extraordinarily hesitant to discipline prosecutors, especially with respect to Brady violations.
DOJ has the right to appeal to the three-judge Merit Systems Protection Board. It will be interesting to see if it does.