Thursday, June 16, 2011
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “Twitter, Facebook & Google in the Courtroom: High Profile Defense in Real Time,” Thursday, June 16, 2011
Guest Blogger: Darin Thompson, Assistant Federal Public Defender, Office of the Federal Public Defender (Cleveland,OH)
The seminar opened with a discussion of the intersection between the internet (especially so-called “social media”) and the courtroom. The discussion was moderated by Gail Shifman, and the panel included Leslie R. Caldwell, Rusty Hardin, Dennis P. Riordan, and Allen J. Ruby.
The panel started by discussing cases with intense media scrutiny. High profile cases can arise due to the notoriety of the client, as was the case with Mr. Ruby’s former client Barry Bonds. But as Ms. Shifman noted, any kind of case or defendant can become notorious, as the glare of the media spotlight can be prompted by the facts of the case. The skills discussed can be required by cases in any criminal defense practice.
Mr. Hardin stressed determining early in the case to what extent the client’s reputation in the community is especially important, i.e., a celebrity or politician, and if so, react more proactively in media response. He stressed that the storyline of the case for the media will be set very early, perhaps in the first 36 hours, and will be repeated as the media updates the story.
Mr. Ruby spoke about a client’s concerns when under the spotlight: a strategy that repairs damage to reputation, to the extent possible. The internet has changed the game in many ways, but one is that it never forgets: every news story remains preserved for future searches, making “weathering the storm” less viable of a strategy than in years past.
Mr. Riordan discussed picking potential media outlets to suit your strategy: not every client and case will benefit from a discussion with Nancy Grace or her ilk, but some will. Different kinds of print media and bloggers are well suited to other kinds of cases.
Multiple panelists referenced the Duke rape case as one of the finest examples of excellence in media strategy. The choice of media, themes and messengers were all lauded.
Where reporters are pressing attorneys for comments, but public comments would not be beneficial (i.e., are part of the media strategy), off-the-record or background comments to the press may be useful, either to “hold them at bay” or to begin to influence the media coverage of a case. Where attorneys are gagged not by strategy, but by court order, motions can be drafted to convey the client’s position.
Another point stressed by multiple panelists was that the jury will remember what the lawyers say, and therefore attorneys should be careful before they make specific factual assertions in the press.
The panel discussion turned to specific social media issues. Use of social media research on witnesses or jurors was discussed, and it was noted that the use of third persons to surreptitiously access Facebook pages has been repeatedly characterized as unethical in numerous bar opinions.
Jury control in the age of social media and internet saturation was discussed. All panelists agreed that ordinary jury admonitions on these topics are seemingly “not processed” by jurors: it is simply unfathomable to not use the internet. Suggestions included requesting Facebook and Twitter information from prospective jurors (perhaps being given only to the court), or requesting the strongest possible judicial warnings to jurors.
Thursday, September 9, 2010
I believe that I subscribe to every DOJ press release service pertaining to federal criminal law. My favorite press releases to read are those put out by the FBI. World class self-promoters, the folks at the Bureau like to brag every time one of their investigations results in an arrest, indictment, guilty plea, trial conviction, or sentence. Following the FBI's press releases can give you a quick, informal, and unscientific sense of what's hot and happening in federal law enforcement--at least according to the FBI. Yesterday, the Bureau issued 19 press releases related to specific federal criminal cases. Fraud is in first at 8 press releases. Robbery comes in a strong second at 5. Child pornography is third with 2. Piracy, stolen firearms, stolen cars, and prescription drug abuse limp in at 1 each. White collar crime rules the roost. We're number one!
Thursday, August 19, 2010
The Washington Post story is here and has a link to the indictment. Nothing yet up on PACER. Clemens is charged in six counts with perjury, false statements, and obstruction of Congress.
Thursday, June 24, 2010
GUEST BLOGGER-SOLOMON L. WISENBERG
Here is a press release from the National Association of Criminal Defense Lawyers ("NACDL") containing NACDL President Cynthia Orr's comments on today's U.S. Supreme Court honest services opinions. Orr is “heartened that the Court has unambiguously rejected government arguments that the ‘honest services’ fraud statute can be properly used across as broad a range of conduct as the government has sought to do in recent years.” Nonetheless she is"disappointed that the Court has held that there remains a place in our criminal justice system for a statute on whose meaning few can agree.” (In various friend of the court briefs, NACDL has taken the position, now shared by Justices Scalia, Thomas, and Kennedy, that 18 U.S.C. Section 1346 is unconstitutionally vague.)
Orr expects “to see future litigation surrounding efforts by prosecutors to wedge their cases into the ‘bribe or kickback’ paradigm to which the Court has now limited this statute.” Of this we can be sure.
The NACDL press release also bemoans the portion of the Skilling opinion which "shockingly found that pre-trial publicity and community prejudice did not prevent Mr. Skilling from obtaining a fair trial. In fact, though, there has not been a more poisoned jury pool since the notorious first robbery and murder trial of Wilbert Rideau in Louisiana."
Saturday, October 24, 2009
The University of Chicago's Legal Forum - 2009 Symposium on Crime, Criminal Law and the Recession -began with opening remarks from Anton Valukas(Jenner & Block), who many remember as the former United States Attorney from the Northern District of Illinois in the days of Greylord. Now appointed the Examiner in Lehman Brothers Holdings bankruptcy, he was speaking as the opening keynote on recession and crime. He reminded us of the history of downturns in the economy and how individuals "get caught" when the economy goes soar. He spoke also about the role of lawyers, accountants, and other gatekeepers.
The first panel was Brian Walsh from the Heritage Foundation and myself. Brian Walsh, in a well received talk, stressed how the tools to fight the criminality have been there and adding more to the federal criminal code is not the answer. My talk looked at accountability (the lack of it at the time), who people are blaming (not necessarily accurately), and what transparency will provide us with in the future. A concern, which will be a focus of my paper, is with the diminishing media and its potential impact on investigative reporting that brings to light criminality, oftentimes government corruption.
The second day proves to be a promising discussion with Stuart Green (Rutgers-Newark), John Pfaff (Fordham), Carol Streiker (Harvard), and Jordan Streiker (Texas) talking about the economics of punishment. Roger Fairfax (George Washington), Alex Kreit (Thomas Jefferson), Justin McCrary (Boalt), and Robert Mikos (Vanderbilt) will be speaking about state and local budgets - changes in police and prosecution. The final panel is Richard McAdams (Chicago) and Jonathan Simon(Boalt) speaking about social inequality and crime.
(esp)(written in Chicago)
Tuesday, June 2, 2009
New York Law Journal (law.com) has a superb article by Vesselin Mitev titled, Court Refuses to Halt Media's Use of 'Perp Walk' Photo. Clearly a court cannot and should not interfere with the right of the press to report the news as they see fit. The fact that jurors may be subjected to photos that may taint their opinion of the accused is left to defense counsel to ask about in voir dire and to exclude those individuals that may have been improperly influenced. And if the government goes too far with their tainting the pool, a change of venue or dismissal may be necessitated. The problem in this regard is the government and not the press use of the material.
But that said, the government practice of perp walks is appalling and all press should seriously consider whether they want to participate in furthering this government (mis)conduct. Perp walks are designed to get the media to buy into press of an accused individual being brought into custody via handcuffs. In white collar matters, the individual would have likely turned themselves in without the need for a handcuffed parade in front of the press and oftentimes fellow workers. The practice is one that is in opposition to our system that affords accused individuals a presumption of innocence until proved guilty by the government. Although the press cannot, and should not, be prohibited from using these photos, one would hope that they would evaluate their own ethics in buying into this government practice. And if the government continues to proceed with perp walks, then the courts need to evaluate whether the government has deliberately tainted the jury pool, and the ethics of this practice.
Sunday, March 1, 2009
With the final edition of the Rocky Mountain News (see here), with newspapers across the U.S. closing (see here for an map that tracks the newspaper layoffs), one has to wonder about the future of white collar investigations that originate from the press. Press investigations and exposure of corruption have lead to prosecutions. It is frightening to see the dying press, not only because of what this means to having a well informed public, but also from the perspective of having white collar criminality exposed.
Friday, January 2, 2009
More on Pardons & Commutations -
Charlie Savage NYTimes, has an article titled On Fast Track for Clemency, via the Oval Office and there are wonderful follow-ups from P.S. Ruckman Jr., Pardon Power, ABC News: Pardon Breakdown and The Times: On Pardons and Access . Some observations -
- The process has its issues and those who are less fortunate and don't have a connection may not have as good a chance of securing a pardon or commutation.
- Politics and/or influence may have played a factor and this needs to be scrutinized.
- The press is monitoring every pardon issued.
It's this last point that interests me. We see newspapers cutting staffs and suffering from the economy and also the effect of the Internet. Investigative reporters have served an important role in society and in uncovering many corruption and white collar crimes. So, too, they serve an important role in keeping the government in check. Will this continue and what happens if we lose the power of the press?
Addendum, Mary Flood, Houston Chronicle, Pardon watch on as transition nears -But it's doubtful any Houstonians will make the cut
Saturday, March 8, 2008
Former U.S. Attorney David Iglesias of New Mexico, one of the seven (or eight or even nine) federal prosecutors fired by the Department of Justice in 2006, will be publishing a book, "In Justice," that discusses his career and the process by which he and the others were terminated. In the fashion of other tell-all books that leak certain details to pique our interest, a story in the McClatchey Newspapers (here) reveals that Iglesias spoke with U.S. Attorney Johnny Sutton of the Western District of Texas, the head of the U.S. Attorneys committee and a close ally of the President, to see if he could intercede to save Iglesias' job. According to Iglesias, Sutton said that his name was on a list, and that the firings were "political." While not exactly earth-shattering, the fact that Sutton was shown the list and acknowledged the political nature of the decision shows how the decision-making process was tainted. Prior to being fired, Iglesias received a call from New Mexico Senator Pete Domenici questioning the slow progress of a corruption case involving a Democrat official, and complained about the case not moving forward quickly enough before the 2006 election. Iglesias was fired less than two months later. There are sure to be further disclosures from the book until its release in a few months. I can't wait for the movie, and I wonder who will play Alberto Gonzales, Monica Goodling, Carol Lam, Kevin Ryan, and the rest of the crew. Iglesias was the model for Tom Cruise's role as a Navy lawyer in "A Few Good Men," but he may not be right for the part this time. Suggestions are welcome. (ph)
Thursday, December 20, 2007
There is nothing quite like a high-profile scandal to attract Congressmen like moths to a flame, and the Mitchell Report on steroid and HGH use in baseball is one of the brightest flames around these days. Two Congressional Committees have scheduled hearings in January on the issue, inviting former Senator George Mitchell and MLB Commissioner Bud Selig to testify. Back in March 2005, in the first round of publicity-mongering on steroids in baseball, the House Oversight and Government Affairs Committee invited a number of major leaguers to testify about steroid use. That hearing produced Mark McGwire's famous non-assertion of the Fifth Amendment when he proclaimed he would only talk about the future -- who cares about what a retired baseball player does after his playing days -- and Rafael Palmeiro aggressively asserting that he never used steroids -- only to test positive a couple months later, thus ending his career.
The prospect of such enticing nuggets showing up on YouTube may well result in one or more invitations to superstar pitcher Roger Clemens to testify about his reported steroid use. Clemens is the highest profile player, perhaps after Barry Bonds, named in the Mitchell Report, and he issued the following statement denying the assertions in the Report: "I want to state clearly and without qualification: I did not take steroids, human growth hormone or any other banned substances at any time in my baseball career or, in fact, my entire life. Those substances represent a dangerous and destructive shortcut that no athlete should ever take." A USA Today story (here) quotes Representative Tom Davis as stating that no players will be subpoenaed, but they are free to appear voluntarily and testify under oath.
The source of the information about Clemens is a former trainer, Brian McNamee, who is reported to have spoken to Mitchell and his investigators pursuant to a proffer agreement with federal prosecutors that limits any subsequent use of his statements against him while requiring him to be truthful. This type of limited immunity, sometimes called a "Queen for a Day" agreement, usually is a prelude to a plea bargain with the government that will include a recommendation of leniency from prosecutors based on the defendant's cooperation. There is no report at this point that McNamee has agreed to plead guilty to any charges, and there's a chance prosecutors could decide not to charge him or even grant full immunity. Either way, the limited protection does not mean he is a credible witness automatically.
Given Clemens' denial and McNamee's statements to Mitchell, could there be much better theater than having them both appear on Capitol Hill, a surefire lead story on the evening news? While statements to the media are not subject to the perjury or false statement laws, much to the consternation of many journalists, testimony before Congress is under oath. If you were Clemens' attorney, would you have your client testify, especially if there were others out there aside from McNamee who could provide information against him? On the other hand, given the clarity of his denial of steroid and HGH use, can counsel advise Clemens not to testify if given the opportunity? While Clemens declined to speak with Mitchell, now that his name it out in public, there will be enormous pressure on him to go to Capitol Hill. In his statement he said "I plan to publicly answer all of those questions at the appropriate time in the appropriate way." Is a Congressional hearing the "appropriate" forum, or was he thinking about perhaps going on Larry King?
Of course, Congress would learn nothing of any importance from having Clemens testify, just like no real legislative purpose was served in 2005 when McGwire, Palmeiro, Sammy Sosa, and others were dragged in front of the Committee -- but not Barry Bonds, as it turns out. The invitation is really asking Clemens to step into a perjury traps because Congressional testimony is under oath, and hence subject to a perjury prosecution. The trap is easily avoided, if Clemens is not subpoenaed to testify, because he can just decline the invitation while castigating the media. Indeed, he may already have laid the groundwork for such a position when his statement included the following: "I am disappointed that my 25 years in public life have apparently not earned me the benefit of the doubt." Perhaps he will simply ask for the benefit of the doubt, but at what cost to his credibility if there's an open invitation to reiterate under oath what he has already said to the media. (ph)
Friday, November 9, 2007
Sunday, September 2, 2007
"Corporate Representation after DOJ's McNulty Memo: The Implications of DOJ Policy for White Collar Defenders, Internal Investigators, Civil Litigators and Everyday Business Advisors."
The program will bring together experts to explain the McNulty Memo, its background and meaning for practitioners in white-collar prosecutions, internal investigations, civil litigation, and everyday corporate practice. Our faculty will offer insight into how DOJ is actually implementing the McNulty Memo, its significance for other government agencies, how lawyers are practicing in light of it, and how critics are taking steps to achieve further restraints.
For more details see here.
Wednesday, August 15, 2007
Washington Legal Foundation Program -
"Over the past year, criminal defense lawyers, civil liberties advocates, and business associations have been seeking greater protection for white collar defendants’ rights and privileges in the face of increased corporate criminalization. A series of federal court rulings on the constitutional rights of former KPMG executives have helped to fuel the drive for such reform. On Thursday, August 16 from 10:00-11:00 a.m. EST, Washington Legal Foundation will be broadcasting a live Web Seminar examining the ongoing legal drama of U.S. v. Stein and the larger debate over the attorney-client privilege, the ability of companies to pay accused employees’ legal fees, and the McNulty Memo. The discussion features National Association of Criminal Defense Lawyers’ Stephanie Martz, and Lawrence Barcella, a leading white collar crime partner from the law firm Paul, Hastings, Janofsky & Walker LLP.
"We encourage you to interact with our speakers by emailing your questions during the program to firstname.lastname@example.org."
For more information, see here -
Monday, August 13, 2007
The NYTimes has an article titled, "5 Reporters Ordered to Testify About Government Sources."
Thursday, April 26, 2007
A new blog that is part of the Law Professor Blogs network is the M&A Law Prof Blog written by my colleague, Professor Steven Davidoff. For those interested in corporate mergers, acquisitions, private equity investments, and the securities markets, it is an interesting read. (ph)
Wednesday, February 14, 2007
Perhaps it was inevitable that there would be a movie, and there are reports that leading man Leonardo DiCaprio will star in a movie about the demise of Enron. According to a CNN story (here), the screenplay will be based on Kurt Eichenwald's book "Conspiracy of Fools," and DiCaprio will play a newly-hired employee who exposes the fraud at the company. I suspect the role of Sherron Watkins will be downplayed, and no doubt hints about a conspiracy involving President Bush and major energy companies will have to enliven what is an otherwise mundane story -- it's awfully hard to make the use of an off-shore special purpose entity to transfers assets to avoid the proper accounting treatment of a loan sound the least bit interesting. DiCaprio starred in Titanic, so it will be difficult to resist comparisons to that disaster, and I doubt there will be any scenes on the roof of the Enron tower in Houston. Then again, there are those who claim the government's prosecution of Lay, Skilling, and others was a work of complete fiction anyway, the so-called "criminalization of agency costs" argument, so this story can't be viewed as any more of a fabrication. (ph)
Friday, October 13, 2006
The Wall Street Jrl here tells of the life Conrad Black is leading despite charges pending against him. Oftentimes those who are alleged to have committed white collar crimes remain hidden during the pendency of the case. Lord Black, however, has been on the social scene, even serving as a speaker at Toronto's Empire Club.
The article also speaks of whether Black is trying to reinstate his Canadian citizenship in case he is convicted, thus allowing him to serve any sentence issued in Canada. Prisoner Transfer Treaties allow a person convicted in one country to serve their sentence in another country. (see here). "However, a prisoner is not eligible for transfer until the judgment and sentence in his case is final; that is, when no appeals or collateral attacks are pending." (Id.) But perhaps this entire conversation is premature as Conrad Black has only been indicted, and that does not mean the government will be successful in proving a case against him.
Wednesday, May 10, 2006
In the burgeoning world of media-sponsored law blogs, the Washington Post has started one called Bench Conference (here) that is written by Andrew Cohen. Another good source of legal information and commentary in the blogging world. (ph)
Wednesday, April 12, 2006
The SEC issued a policy statement (here) setting forth its procedures for issuing a subpoena to the media during a formal investigation. The issue came to the forefront in February when the Commission issued subpoenas to three columnists who publish on-line for information about contacts with short sellers of Overstock.com shares. An allegation commonly made against those who specialize in selling short a company's stock -- a bet that the stock will decline -- is that they spread false information through the media and internet to drive down the market price of the shares. The Enforcement Division sought information from the journalists about columns they wrote that contained negative information about Overstock.com, but the subpoenas were withdrawn shortly thereafter due to the storm of criticism regarding interference with the media.
SEC Chairman Christopher Cox issued the new policy, which imposes of number of intermediate steps before the Enforcement Division staff can issue a subpoena to members of the media. First, the SEC must try to obtain the information informally, and contacts should be done through counsel for the journalist rather than by a direct contact. The benefit of this approach is that issues of whether the journalist even has relevant information, and whether a claim of privilege might be raised, can be decided before any further steps are taken. The policy also stresses that other avenues for obtaining the information should be exhausted, and any information sought should be important and not peripheral:
If negotiations are not successful in achieving a resolution that accommodates the Commission's interest in the information and the media's interests without issuing a subpoena, the staff investigating the matter should then consider whether to seek the issuance of a subpoena for the information. The following principles should guide the determination of whether a subpoena to a member of the news media should be issued:
(1) There should be reasonable grounds to believe that the information sought is essential to successful completion of the investigation. The subpoena should not be used to obtain peripheral or nonessential information.
(2) The staff should have exhausted all reasonable alternative means of obtaining the information from non-media sources. Whether all reasonable efforts have been made to obtain the information from alternative sources will depend on the particular circumstances of the investigation, including whether there is an immediate need to preserve assets or protect investors from an ongoing fraud.
Only after working through other possibilities can a request for a subpoena be made, and the decision whether to issue the subpoena will be made by the Director of Enforcement in consultation with the General Counsel. If the decision is made to issue the subpoena, the Chairman must be notified, and the terms of the subpoena negotiated with counsel for the media outlet in advance so that it can be as narrow as possible. Moreover, the policy states that "[i]n the absence of special circumstances, subpoenas to members of the news media should be limited to the verification of published information and to surrounding circumstances relating to the accuracy of published information."
All in all, the Commission's policy will make it very difficult for the Enforcement Division staff to issue subpoenas because of the many layers of review. The policy stresses a cooperative process, in which counsel for the subpoena recipient will work with the staff to shape the information request, rather than an "issue first, ask questions later" approach to obtaining information through the SEC's compulsory powers. (ph)
Saturday, April 8, 2006
Yahoo News (Reuters) reports here on an investigation of a gossip columnist at a NY newspaper who is alleged to have tried to extort money from an individual in return for not printing a story. Clearly such reprehensible form of conduct would be ethically improper. And if this extortion did occur then there might be also be legal implications, including criminal ones. But the columnist is saying hold on - - on Poynter Online - Romenesko here . He said he is hoping that his paper will "not rush to judgment."