Sunday, October 16, 2005

"Real Time Enforcement" - The New Prosecution Approach?

In the past white collar cases were noted for taking significant time for investigation and prosecution.  Long grand jury sessions would peruse documents and prosecutors would often spend time working up the ladder to eventually prosecute high-ups.

This may be changing in some parts of the country.  Noted in this post here , David Nahmias, the United States Attorney for the Northern District of Georgia,  used the term "real time enforcement. This can be considered a move in a direction toward proceeding with prosecutions at a quicker speed.

The Refco prosecutor may be taking this same posture. Michael J. Garcia, the U.S. Attorney for the Southern District of New York wasted little time in filing a complaint against the former CEO of Refco. (see here) Seldom do we see in a white collar case an individual being charged for alleged conduct occurring the year prior and the year of the charging document. (see DOJ Press Release here).  The Wall Street Journal here gives us some background on the prosecutor.

So is "real time enforcement" good in white collar cases? 

1.For one it treats the case more like a street crime case. Considering the recent sentences that work to bridging the gap between street crime and white collar, it seems justified to also treat the cases in a like manner in other stages of the process, not just the sentencing phase.

2.  It certainly places an incredible pressure on prosecutors to move faster in white collar matters and there may be more of an inclination to take "short cuts."  These "short cuts" might mean using charges like obstruction, false statements, and perjury as opposed to investigating the underlying conduct.

3.  From the defense perspective it has a benefit. For one the client is not left hanging for an inordinate amount of time, wondering if they will or will not be prosecuted.  It also puts the defense on equal footing come trial time.  In the past the prosecution may have worked to build up their case for years while the defense has only the short pre-trial time to investigate.  Having the prosecution proceed quicker with the white collar case will level the "playing field" come trial time.


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