Wednesday, August 22, 2018
Yesterday was a crucial day for Special Counsel Mueller's Investigation in that Paul Manafort was convicted on eight counts. The fact that the remaining counts were "hung" is inconsequential as the sting of these eight convictions sends a strong message and a possible heavy sentence. To make matters worse for Manafort, he still has an upcoming trial in DC on other charges. One could argue that there is always the possibility of success on appeal or a presidential pardon. But one has to wonder whether Manafort's time in negotiating a plea with the Special Counsel may be running out. And is there now competition in who will get the best cooperation agreement or favorable statement at sentencing from the government.
Further north, it was an important day in that within the same hour as Manafort's conviction, Attorney Michael Cohen entered a guilty plea to eight counts. Many in the media are noting that in the plea hearing Cohen said that his actions were "at the direction of a candidate for federal office." Was Michael Cohen sending a message to Mueller's team that he is ready to talk?
These two cases are not currently connected --two different prosecutors, two different offices, two different courts, two different matters.
But how many cooperators does Mueller need, and will Manafort (if he decides to cooperate) be up against Cohen's desire to offer evidence, assuming that he might have an interest in cooperation.
It may be a stretch to say that the clock is ticking for potential cooperators. It may also be that Mueller is someone who says "the more the better." Bottom line we just don't know. But yesterday's count of 8 will go down as a memorable day, not because of the matching 8s, but because of what is happening to individuals who had been associated with the President.
Tuesday, August 14, 2018
The NACDL recently released an important report detailing the impact of the trial penalty, which is the difference between the sentence a defendant receives in return for pleading guilty and the often much larger sentence he or she receives in return for exercising his or her constitutional right to trial.
From the NACDL press release:
The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial. To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system
This report is the product of more than two years of careful research and deliberation. In it, NACDL examines sentencing and other data underlying the fact that, after a 50 year decline, fewer than 3% of federal criminal cases result in a trial. With more than 97% of criminal cases being resolved by plea in a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system is self-evident. The report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable principles and recommendations to address this crisis. With its release, NACDL intends to launch a sustained effort to rein in the abuse of the trial penalty throughout federal and state criminal justice systems. The Trial Penalty report, and the principles and recommendations it puts forward, seeks to save the right to a trial from extinction.
The entire report is well worth reading. For those in the white collar field, I'll note that the report contains a specific section on economic crimes. This portion of the report focuses on Section 2B1.1 of the Federal Sentencing Guidelines. The report discusses the role of 2B1.1 and loss calculations in creating incentives for defendants to plead guilty. You can access the entire NACDL report here.
I found the NACDL report particularly interesting as I've engaged in much research on the issue of plea bargaining and sentencing differentials, including the impact of such incentives on innocent defendants. In one study, we found that 56% of innocent participants were willing to falsely confess guilt and "plead guilty" in return for a bargain. You can read more about those findings and the issue of plea bargaining's innocence issue here.