Friday, August 16, 2013
ABA Sixth Annual Foreign Corrupt Practices Act National Institute, Sept. 18-19, 2013, Washington, D.C. - here
NACDL's 9th Annual Conference - Defending the White Collar Case: In and Our of Court, Oct. 24-25, Washington, D.C. - here
Thursday, August 15, 2013
The BLT Blog provides background here.
The government asked for 4 years and the defense wanted a much lower amount for Jesse Jackson Jr. The court entered a sentence of 2 1/2 years (30 months) for Jesse Jackson Jr. and 1 year (12 months) for his wife, Sandi Jackson. See Ann E. Marimow and Rachel Weiner, Washington Post, Jesse L. Jackson Jr. sentenced to 30 months in prison
The Chicago Tribune reports (here) that Jesse Jackson Jr. will serve his sentence first, followed by Sandi Jackson.
It is good to see courts accommodating the sentences of a husband and wife to account for what may be best for their children. We have seen this done in the past, for example in the case of Lea and Andy Fastow (see here).
Wednesday, August 14, 2013
Call for Papers from the Notre Dame Jrl of Law, Ethics, and Public Policy -
The Notre Dame Journal of Law, Ethics & Public Policy is currently accepting articles and essays from professors, practitioners, and public officials for publication in its symposium issue, which will focus on the legal, moral, and ethical considerations of white-collar crime in the twenty-first century, which will be published early next year. Articles should be approximately 9,000 to 15,000 words and in Bluebook Citation format. Additionally, symposium authors will be among those selected to participate in our symposium event, which will be scheduled during the Spring 2014 semester.
The law student-edited Journal is unique among legal periodicals because it examines public policy and legal questions within the framework of the Judeo-Christian intellectual and moral tradition. The Journal has a national audience of persons actively involved in the formulation of public policy, and often includes timely pieces from a broad spectrum of prominent scholars and officials. The Journal’s unique focus is widely recognized, as demonstrated in citations to the Journal by various state and federal courts, including the United States Supreme Court. More information on the Journal is available at https://law.nd.edu/publications/journals/notre-dame-journal-of-law-ethics-public-policy/.
If you are interested in submitting a piece, please contact the Journal’s Executive Articles Editor, Angela Johnson at email@example.com or (574) 238-9225. Please submit by November 1, 2013. The Executive Board will consider submissions for publication immediately and would appreciate hearing of an author’s intent to submit as soon as possible.
Tuesday, August 13, 2013
Attorney General Eric Holder's talk (see here) at the American Bar Association Conference should be applauded. To have an Attorney General say that "our criminal justice system is in too many respects broken" is a huge step in us moving ahead to change. His recognition "that 20th Century criminal justice solutions are not adequate to overcome our 21st century challenges" is a high point of this speech.
Addressing issues relevant to the white collar world, he said that his administration had a "strong commitment to common sense criminal justice reform." To have the Attorney General tell the ABA and public "federal prosecutors cannot - and should not - bring every case or charge every defendant who stands accused of violating federal law" is a huge step in correcting injustice in the criminal process. Recognizing the importance of state and local law enforcement is a step in the direction of reigning in federal overcriminalization. He even uses the "smarter" on crime terminology that many have been emphasizing across the country.
Perhaps the most important aspect of this speech is his statement regarding this being the 50th anniversary of the Gideon decision and how our public defender system needs increased funding. These are the words that reflect him as a true "minister of justice."
He also spoke about problems related to collateral consquences, something that has been most bothersome in the white collar world.
This was an uplifting speech and it is wonderful to see this coming from the Attorney General. Hats off to AG Holder.
Well, DOJ didn't admit it in those exact words. The tone and content were more Ziegleresque: "[T]he announcement overstated the number of defendants that should have been included as part of the Distressed Homeowner Initiative, as well as the corresponding estimated loss amount and number of victims." The original press release and press conference in October 2012 touted "the results of the Distressed Homeowner Initiative, the first-ever nationwide effort to target fraud schemes that prey upon suffering homeowners. The yearlong initiative, launched by the FBI, a co-chair of the Financial Fraud Enforcement Task Force’s Mortgage Fraud Working Group, resulted in 107 criminal defendants charged in U.S. District Courts across the country. These cases involved more than 17,185 homeowner victims and total losses by those victims estimated by law enforcement at more than $95 million." It turns out the numbers given for people arrested, victims affected, and losses incurred were grossly inflated. Jonathan Weil's blistering Bloomberg.com column discussing the rigged numbers is here. The original press release and Newspeak retraction are here. No doubt DOJ is working up a Section 1001 case right now against the folks who gave out these numbers. I don't usually quote socialists, but I.F. Stone's favorite saying now comes to mind: "All governments are run by liars." Hat Tip to Professor William Black for bringing this story to my attention.
Monday, August 12, 2013
I posted here last October on Guts and the DC Bar Counsel: The Case of Andrew J. Klineand asked:
"What is the solution to the persistent blight of jaw-droppingly obvious Brady/Giglio violations? One solution is to bring ethical complaints against purportedly miscreant prosecutors in appropriate instances. Which brings us to the case of former DC AUSA Andrew J. Kline, currently making its way through the bar disciplinary process . . . DC Bar Counsel wants Kline censured for an alleged Brady/Giglio violation that also runs afoul, according to Bar Counsel, of the arguably broader Rule 3.8(e) of the DC Rules of Professional Conduct . Rule 3.8(e) states in pertinent part that: 'The prosecutor in a criminal case shall not . . . intentionally fail to disclose to the defense, upon request and at a time when use by the defense is reasonably feasible, any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused . . . .'
The defense bar often talks about using various state versions of Rule 3.8(e) in tandem with Brady/Giglio, in part to get around the Brady/Giglio materiality problem. Here is a Bar Counsel actually doing something about it. Kline vigorously denies that the withheld information was material or that he intentionally engaged in any wrongdoing.
What information did Kline actually withhold? He was prosecuting Arnell Shelton for the shooting of Christopher Boyd. Shelton had filed an alibi notice and 'the reliability of the government's identification witnesses' was the principal issue at the 2002 trial, according to the Report and Recommendation of Hearing Committee Number Nine ("Report and Recommendation"). Kline spoke with Metropolitan Police Department Officer Edward Woodward in preparation for trial. Kline took contemporaneous notes. Woodward was the first officer at the scene of the crime and spoke to victim Boyd at the hospital shortly after the shooting.
According to the Report and Recommendation, Kline's notes of his conversation with Woodward were, in pertinent part, as follows: 'Boyd told officer at hospital that he did not know who shot him–appeared maybe to not want to cooperate at the time. He was in pain and this officer had arrested him for possession of a machine gun …'
At trial Boyd identified Shelton as the shooter. According to Bar Counsel, Kline never disclosed Boyd's hospital statement to the defense despite a specific Brady/Giglio request for impeachment material. The other identification witnesses were weak and/or impeachable.
The case ended in a hung jury mistrial and the alleged Brady material (that is, Boyd's hospital statement to Woodward) was not revealed to the defense until literally the eve of the second trial, even though DC-OUSA prosecutors and supervisors had known about it for some time. When the trial court found out about the hospital statement and that it had not been disclosed before the first trial because Kline did not consider it exculpatory, the court was thunderstruck: 'I don’t see how any prosecutor could take that position. . . I don’t see how any prosecutor anywhere in any state in the country, could say I don’t have to turn that over because I think I know why he said that.' See DC Bar Counsel's corrected Brief at 8.
The court offered defense counsel a continuance, but she elected to go to trial as her client was then in jail. The second trial ended in Shelton's conviction.
Kline's position now is that the hospital statement was not material, hence not Brady, because Boyd was in pain and being treated for a gunshot wound at the time and because Shelton was ultimately convicted upon retrial.
Bar Counsel's position is that the withheld hospital statement was material and exculpatory and therefore Brady material, but that even if it was not Brady material, the failure to turn it over violated Rule 3.8(e). Bar Counsel seeks a public censure of Mr. Kline."
That was back in October 2012. At the time of the original post, Kline was in the process of contesting Hearing Committee Number Nine's Report and Recommendation to the District of Columbia Court of Appeals Board on Professional Responsibility (Board). The Board issued its own Report and Recommendation on July 31, 2013, upholding the Hearing Committee, but changing the recommended sanction from public censure to 30 days suspension.
The Board accepted the Hearing Committee's factual and legal conclusions and found that: 1) the withheld statement was material; and 2) even if it had not been material, Rule 3.8(e) required its disclosure, because Rule 3.8(e) does not contain a materiality element. The Board also agreed that: 1) Kline knew or should have known that the information tended to negate the guilt of the accused; 2) the defense requested the exculpatory information at a time when its use was reasonably feasible; and 3) the failure to turn over the statement was intentional.
The DOJ, which says it cares so much about respecting the constitutional rule announced 50 years ago in Brady v. Maryland, came in with an amicus brief arguing that the withheld statement was not material. How appalling.