Wednesday, February 24, 2021
One thing is pretty clear from the Garland hearing - he will easily be confirmed. Non-political, experienced, caring, and yet determined to restore the DOJ to some of its roots was apparent in his testimony. Check out, Jack Queen, Garland Aced His AG Audition. Next Comes The Hard Part. But there are still many questions that will await review when he becomes the AG - how he will handle the many challenges facing the department.
Sunday, February 21, 2021
Many are opining on what to expect at the Garland hearing this week:
Jack Queen, What To Watch For At Garland's AG Confirmation Hearings, Law360
Carrie Johnson, Merrick Garland Heads For Confirmation Hearing, 5 Years After He Was Denied A Vote, NPR
Garland's opening statement is noted on CNN here.
Some thoughts on his opening statement -
- First page after preliminary thanks and expounding on the historical role of AG is to emphasize the "rule of law" and "independence of the Department from partisan influence in law enforcement investigations."
- Civil Rights and its importance is placed in the context of history.
- He speaks about his role in the Oklahoma City prosecutions and moves into foreign and domestic enemies.
- Two terrific Robert Jackson quotes highlight the ending.
It is a short statement, and provides little about his priorities as AG. But it does set a tone that fairness and a nonpolitical administration will be what overrides everything. One can expect he will be peppered with questions about many areas of concern.
Saturday, February 20, 2021
In all criminal proceedings, on the first scheduled court date when both prosecutor and defense counsel are present, the judge shall issue an oral and written order to prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and the possible consequences of violating such order under applicable law.
Each judicial council in which a district court is located shall promulgate a model order for the purpose of paragraph (1) that the court may use as it determines is appropriate.
So what should that Model Order look like? The National Association of Criminal Defense Lawyers (NACDL) has such an order for court's to use. It is an order that promotes due process, fairness to the accused, while also balancing the rights of others. A copy of that Order can be found here. Importantly, it includes provisions of the consequences when there is a failure to comply.
(esp)(disclosure that I was part of the drafting team).
Thursday, February 18, 2021
William K. Rashbaum, Ben Protess, & Jonah E. Bromwich, Manhattan D.A. Recruits Top Prosecutor for Trump Inquiry, NYTimes
Wednesday, February 17, 2021
David Oscar Markus has a terrific podcast interviewing Rob Cary of Williams and Connolly on his representation of Senator Ted Stevens. See here. It is important to be reminded of the important role that Judge Emmet Sullivan played in exposing discovery violations that had occurred in this case. We are starting to see the full effect of what happened in the Steven's case with the recent passage of the Due Process Protection Act of 2020, which reminds prosecutor's of their discovery obligations under Brady.
Sunday, February 14, 2021
The U.S. Securities and Exchange Commission (SEC) failed to properly investigate Bernard Madoff’s multi-billion-dollar Ponzi scheme for over ten years. Many individuals and charities suffered devastating financial consequences from this criminal conduct, and when eventually charged and convicted, Madoff received a sentence of 150 years in prison. Improper regulatory oversight was also faulted in the investigation following the Deepwater Horizon tragedy. Employees of the company lost their lives, and individuals were charged with criminal offenses. These are just two of the many examples of agency failures to properly enforce and provide regulatory oversight, with eventual criminal prosecutions resulting from the conduct. The question is whether the harms accruing from misconduct and later criminal prosecutions could have been prevented if agency oversight had been stronger. Even if criminal punishment were still necessitated, would prompt agency action have diminished the public harm and likewise decreased the perpetrator’s criminal culpability?
Criminalization and regulation, although two distinct systems, can be evaluated from the perspective of their substantive structure—a universe of statutes or regulations—as well as their enforcement procedures, the prosecution of crimes, or enforcement of regulatory provisions. The correlation between criminalization and regulation is less noticed, however, as the advocacy tends to land in two camps: (1) those advocating for increased criminalization and regulation or (2) those claiming overcriminalization and overregulation.
This Article examines the polarized approach to overcriminalization and underregulation from both a substantive and procedural perspective, presenting the need to look holistically at government authority to achieve the maximum societal benefit. Focusing only on the costs and benefits of regulation fails to consider the ramifications to criminal conduct and prosecutions in an overcriminalized world. This Article posits a moderated approach, premised on political economy, that offers a paradigm that could lead to a reduction in our carceral environment, and a reduction in criminal conduct.
Saturday, February 13, 2021
DOJ prosecutions related to COVID Fraud are clearly picking up. The DOJ's website front page instructs viewers on reporting COVID-19 crime. And the Justice News shows a line of recent press releases focused on COVID related fraud. One sees prosecutions for alleged "schemes purporting to sell Covid-19 Vaccines" (here), pandemic unemployment benefits fraud (here), and charges being brought for alleged "misappropriating monies designed for COVID Medical Provider Relief (here).
Thursday, February 4, 2021
DOJ Press Release reports, "Florida Businesswoman Pleads Guilty to Criminal Health Care and Tax Fraud Charges and Agrees to $20.3 Million Civil False Claims Act Settlement." (see here). The government notes that along with the criminal matter being resolved (although sentencing as not occurred yet), the settlement of the civil false claims case "includes the resolution of claims brought under the qui tam or whistleblower provisions of the False Claims Act." The settlement can be found here.
Wednesday, February 3, 2021
DOJ Press Release reports, "The CEO of a Texas-based group of hospice and home health entities was sentenced today to 15 years in prison for falsely telling thousands of patients with long-term incurable diseases they had less than six months to live in order to enroll the patients in hospice programs for which they were otherwise unqualified, thereby increasing revenue to the company." Full press release here.
Monday, February 1, 2021
The DOJ's Acting Attorney General Monty Wilkinson reinstated the Department Policy on Charging and Sentencing of May 19, 2010. Although noted that this is an interim measure pending the confirmation of a new Attorney General, it demonstrates the forceful return to a policy that is premised on "individualized assessment." The new policy dated January 20, 2021 states, "The goal of this interim step is to ensure that decisions about charging, plea agreements, and advocacy at sentencing are based on the merits of each case and reflect an individualized assessment of relevant facts while longer-term policy is formulated." See Policy here.
In a country that is plagued with mass incarceration and racial inequities, it is wonderful to see reinstated a policy that will allow disparities to be corrected. As noted in this memo, "Together we will work to safeguard the public, maximize the impact of our federal resources, avoid unwarranted disparities, promote fair outcomes in sentencing, and seek justice in every case."
See also Stewart Bishop, Acting AG Drops Trump-Era Tough-On-Crime Charging Policy here.