Saturday, June 28, 2008

Refusing to Plea Bargain - The Patsy Kelly Jarrett Story

The Washington Post Magazine has a fascinating story posted regarding the Patsy Kelly Jarret murder case and conviction. The introduction to the piece discusses the role of plea bargaining in the case and the consequences of refusing to deal in hopes of vindication. The notion of defendants pleading guilty to crimes they did not commit has been an area of discomfort for the criminal justice system since plea bargaining's rise to prominence. This article reminds us again of the significant consequences of refusing to accept a plea offer and the hard decisions faced by those who must choose between life and truth.

Kelly's case, my first, would end up following me for the next 25 years. Kelly was convicted based on nothing more than the memories of that one eyewitness, who saw the driver of the car fleetingly and, when first questioned, couldn't even say whether the person had been a man or a woman. It remains the most haunting miscarriage of justice I have ever encountered.

Yet the case haunts me in another way. At least twice, Kelly was given the chance to plead guilty and dramatically reduce her sentence -- to as little as five or 10 years. She refused; she said she couldn't swear to something she didn't do. She should have.


Read the entire story in the Washington Post Magazine here:
http://www.washingtonpost.com/wp-dyn/content/article/2008/06/24/AR2008062401155.html?hpid=topnews

Tuesday, June 24, 2008

Broadcom Co-Founder Pleads Guilty

Henry Samueli, the co-founder of Broadcom and a technology billionaire, pleaded guilty in Santa Ana, California, yesterday to a single felony charge of lying to the SEC regarding an alleged scheme to manipulate stock options. Under the agreement, the government will recommend five years' probation and $12.2 million in fines and penalties. Sentencing is scheduled for August 18, 2008.

This is yet another example of white collar defendants finding themselves charged for conduct that occurred after the original event under investigation. In the LA Times story below, Professor John Coffee of Columbia University commented, "Most of these high-powered people who rise to that level of stature have perfected their ability to talk their way out of problems. . . That's a fatal mistake when you're dealing with the government. You've got to shut up."

See the LA Times story here:
http://www.latimes.com/business/la-fi-samueli24-2008jun24,0,3244548.story

See the Samueli Plea Agreement here:
http://www.latimes.com/media/acrobat/2008-06/40317969.pdf

Friday, June 20, 2008

A Plea Bargain in Return for Information on the Centuries-Old Secrecy of the Swiss Banking System

Bradley Birkenfeld, a former UBS AG banker, pleaded guilty in Florida federal court yesterday. He was indicted in May for allegedly assisting a billionaire real estate client evade taxes on $200 million held in Swiss and Lichtenstein bank accounts. The most interesting aspect of this case is that federal prosecutors are expected to seek a delay in sentencing for Birkenfeld while they "try to use Birkenfeld's knowledge to pierce the centuries-old secrecy for which UBS and other Swiss banks are known."

Could this be the start of a larger investigation by federal authorities into Swiss banking?

http://blogs.wsj.com/law/2008/06/20/ex-ubs-banker-pleads-guilty-in-tax-scheme/

Notable Plea Bargain - Naomi Campbell

It has been reported that British supermodel Naomi Campbell has accepted a plea agreement in London court. Campbell, who originally faced six charges relating to an altercation over lost luggage on a plane at London's Heathrow airport, pleaded guilty on friday to four charges. Her sentence is as of yet unknown.

See an article on the plea agreement here:
http://www.msnbc.msn.com/id/25278913/

Thursday, June 19, 2008

Deal or No Deal - The Bear Stearns Duo

A big indictment was handed down yesterday in the Bear Stearns matter against former hedge fund managers Ralph Cioffi and Matthew Tannin. The major issue in the case is whether they misled investors about the strength and performance of two portfolios that eventually collapsed.

For purposes of The Plea Bargaining Blog, we have to ask the inevitable question - Will they take a plea deal or risk going to trial in a well publicized financial crimes case? While initial reports regarding the indictment indicated the case was weak, the actual indictment contains a wealth of information regarding specific conduct the government will offer to demonstrate the fund managers purposefully mislead investors. With what appears to be a strong case for the U.S. Attorney's Office, what could Cioffi and Tannin offer in return for the government's leniency? The natural answer in these types of cases is typically the ability to use the testimony of the bargaining defendant against someone higher in the corporation, just as occurred in the Enron matter. But the indictment here indicates Cioffi and Tannin are as high as this alleged fraud goes at Bear Stearns. In fact, the indictment specifically states that "Tannin and Cioffi never disclosed the gravity of the Funds' problems to investors or more senior BSAM personnel." With little in the way to offer the government regarding others, this case is likely to go in one of two ways.

First, both defendants might simply take their chances at trial. With a possible $1.4 billion loss figure in the case (the total amount lost by the funds), any prison sentence would be staggering even if a plea deal was accepted and a reduction was given for acceptance of responsibility under the Federal Sentencing Guidelines. Where the potential sentence resulting from a plea agreement is not significantly lower than that faced at trial, defendants rarely accept the plea offer.

Alternatively, there may be a race to the courthouse. If one defendant agrees to flip on the other, the rewards may be more significant, and, therefore, worthy of acceptance. Of course, that these funds were under investigation by the federal government is nothing new. Therefore, if either Tannin or Cioffi wanted to deal, they likely would have already made such a move.

As a result, it appears there is a strong chance we may have another great American trial in the E.D.N.Y. This will certainly be one to watch.

See the indictment in the Bear Stearns matter here:
http://online.wsj.com/public/resources/documents/bearindictment.pdf

Will Sir Mark Thatcher’s Plea Bargain in South Africa Stand?

It has been reported that a mercenary involved in the plot to overthrow the President of oil-rich Equatorial Guinea in 2004 has implicated Sir Mark Thatcher, son of the former British Prime Minister, as one of five individuals in charge of the operation. This testimony is in sharp contrast to the assertions of Sir Thatcher, who entered a plea agreement with South African prosecutors in 2005 after claiming his only involvement in the matter was providing funds to purchase what he believed to be an air ambulance. In return for his plea, Sir Thatcher received a heavy fine and a four-year suspended sentence. While I have not seen the agreement that was used in Sir Thatcher’s plea bargain, such agreements typically include a clause dissolving the bargain if it is later determined that the individual provided false information. As such, it is unclear whether this new information about Sir Thatcher’s role in the attempted coup will jeopardize the plea agreement and mean he will be required to enter a new, less generous plea agreement, or, perhaps, stand trial in South Africa.

See The Times (London) Article on the New Testimony Here:
http://www.timesonline.co.uk/tol/news/world/africa/article4166091.ece

Wednesday, June 18, 2008

New Article - Plea Bargaining's Survival: Financial Crimes Plea Bargaining, a Continued Triumph in a Post-Enron World

Welcome to The Plea Bargaining Blog. My hope is that this blog will serve as a resource for scholarship, articles and news about plea bargaining in the United States and around the world. For my first posting, I would like to provide information about my new article regarding plea bargaining in financial crimes cases after the collapse of Enron.  The article, entitled "Plea Bargaining's Survival: Financial Crimes Plea Bargaining, a Continued Triumph in a Post-Enron World," appears in the Oklahoma Law Review, Vol. 60, No. 3 (Fall 2007).  

The article examines the war on financial crimes that began after the collapse of Enron in 2001. Although many believed that the reforms implemented following this scandal led to greater prosecutorial focus on financial crimes and longer prison sentences, an analysis of data from 1995 through 2006 reveals that little has actually changed. The statistics demonstrate that the government's focus on financial crimes has not increased and prison sentences for fraud have remained stagnant. How could this be the case? I argue that although prosecutors could have chosen to use new statutes and amendments to the United States Sentencing Guidelines passed in the wake of Enron to increase prosecutions and sentences, they did not. Instead, prosecutors are using their new tools to encourage defendants to accept plea agreements that include sentences similar to those offered before 2001, while simultaneously threatening to use these same powers to secure astounding sentences if defendants force a trial. The result is that the promises of post-Enron reforms aimed at financial criminals were hollow and served only to reinforce plea bargaining's triumph.

A copy of the article can be downloaded here - http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1135670