Tuesday, December 20, 2011

NACDL White Collar Criminal Defense College at Steston

Get your applications in now for the NACDL White Collar Criminal Defense College at Stetson. This unique training program will expose white collar criminal defense attorneys to the top practitioners in the country during a multi-day hands-on program.

To learn more, click here.

Description:
The NACDL White Collar Criminal Defense College at Stetson is a “boot-camp” program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. The program will cover client retention, investigation in a white collar case, handling searches and grand jury subpoenas, and dealing with parallel proceedings. Participants will have the experience of negotiating a plea, making proffers, and examining which experts to hire and how to protect the client in this process. Interactive sessions with top white collar practitioners will allow the participants to learn trial skills such as opening statements, cross-examination, jury instructions, closing arguments, and sentencing – all in the context of a white collar matter.

The program runs from March 15-20, 2012.

Seminar Location:
Stetson University College of Law
1401 61st St. S.
Gulfport, FL 33707

Hotel Accommodations:
Tradewinds Island Grand Beach Resort
5500 Gulf Boulevard
St. Pete Beach, FL 33706
www.tradewindsresort.com

Faculty:
A. Brian Albritton, Phelps Dunbar, LLP
Henry W. Asbill (Hank), Jones Day
Joe Bodiford, Bodiford Law
Barry Boss, Member, Cozen O'Connor
Ellen C. Brotman, Montgomery McCracken
Robert M. Cary, Williams & Connolly LLP
Vince J. Connelly, Mayer Brown
Lucian E. Dervan, Southern Illinois University School of Law
Donna Lee Elm, Federal Public Defender, Middle District of Florida
James E. Felman, Kynes, Markman & Felman, P.A.
Jack E. Fernandez, Zuckerman Spaeder, LLP
Todd Foster, Cohen & Foster, P.A.
David Gerger, Gerger and Clarke
Nina J. Ginsberg , DiMuro Ginsberg, PC
Lawrence S. Goldman, Law Offices of Lawrence S. Goldman
John Wesley Hall, John Wesley Hall Little Rock Criminal Defense
A. Jeff Ifrah, Ifrah Law
Anthony A. Joseph, Maynard Cooper and Gale, PC
Frank Klim, Stetson University College of Law
John F. Lauro, Lauro Law Firm
Bruce Lyons, Lyons and Sanders Chartered
Terence F. MacCarthy, Distinguished Professorial Lecturer, Stetson University College of Law
Edward A Mallett, Mallett and Saper, L.L.P.
Bruce Maloy, Maloy, Jenkins, & Parker
David Oscar Markus, Markus and Markus, PLLC
James McComas, Retired
Michael D. Monico, Monico, Pavich and Spevack
Jane W. Moscowitz, Moscowitz and Moscowitz, P.A.
William Nortman, Akerman
Kevin J. Napper, Carlton Fields
Cynthia Eva Orr, Goldstein, Goldstein and Hilley
Patricia A. Pileggi, Schiff Hardin, LLP
Barry J. Pollack, Miller & Chevalier
Mark P. Rankin, Shutts and Bowen, LLP
Shana-Tara Regon, NACDL
Michele A. Roberts, Skadden Arps
Slate Meagher and Flom, LLP
Charles H. Rose III, Stetson University College of Law
Kerri L. Ruttenberg, Jones Day
Gail Shifman, Shifmangroup
Adam P. Schwartz, Carlton Fields
William N. Shepherd, Holland & Knight LLP
Neal R. Sonnett, The Law Office of Neal R. Sonnett, P.A.
Ed Suarez, The Law Offices of Ed Suarez, P.A.
Larry Thompson, Former U.S. Deputy Attorney General and Vice President of PepsiCo
Gary R. Trombley, Trombley & Hanes
Albert A. Vondra, PricewaterhouseCoopers, LLP
Morris “Sandy” Weinberg, Jr., Zuckerman Spaeder LLP
Peter H. White, Schulte Roth & Zabel LLP
Solomon L. Wisenberg, Barnes & Thornburg LLP

Wednesday, December 7, 2011

Blagojevich Sentenced to 14 Years in Prison

Former Illinois Governor Rod Blagojevich was sentenced in federal court in Chicago today to 14 years in prison for corruption. Prosecutors had hoped for a sentence of between 15-20 years.  In ruling, the federal judge noted Blagojevich was "late" in accepting responsibility for his crimes.

It is worth noting that Blagojevich is the second consecutive Illinois governor to go to federal prison for corruption.  Former Illinois Governor George Ryan is currently serving a federal prison sentence.

Tuesday, November 29, 2011

Overcriminalization and Sentencing

The Wall Street Journal has a nice article about overcriminalization. 
For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a "guilty mind."

This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them.

As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time. When the police came to Wade Martin's home in Sitka, Alaska, in 2003, he says he had no idea why. Under an exemption to the Marine Mammal Protection Act, coastal Native Alaskans such as Mr. Martin are allowed to trap and hunt species that others can't. That included the 10 sea otters he had recently sold for $50 apiece.

Mr. Martin, 50 years old, readily admitted making the sale. "Then, they told me the buyer wasn't a native," he recalls.

The law requires that animals sold to non-Native Alaskans be converted into handicrafts. He knew the law, Mr. Martin said, and he had thought the buyer was Native Alaskan.

He pleaded guilty in 2008. The government didn't have to prove he knew his conduct was illegal, his lawyer told him. They merely had to show he had made the sale.

"I was thinking, damn, my life's over," Mr. Martin says.

Federal magistrate Judge John Roberts gave him two years' probation and a $1,000 fine. He told the trapper: "You're responsible for the actions that you take."

Mr. Martin now asks customers to prove their heritage and residency. "You get real smart after they come to your house and arrest you and make you feel like Charles Manson," he says.

The U.S. Attorney's office in Alaska didn't respond to requests for comment.

Back in 1790, the first federal criminal law passed by Congress listed fewer than 20 federal crimes. Today there are an estimated 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations, many of which have been added to the penal code since the 1970s.

One controversial new law can hold animal-rights activists criminally responsible for protests that cause the target of their attention to be fearful, regardless of the protesters' intentions. Congress passed the law in 2006 with only about a half-dozen of the 535 members voting on it.

Under English common law principles, most U.S. criminal statutes traditionally required prosecutors not only to prove that defendants committed a bad act, but also that they also had bad intentions. In a theft, don't merely show that the accused took someone's property, but also show that he or she knew it belonged to someone else.

Over time, lawmakers have devised a sliding scale for different crimes. For instance, a "willful" violation is among the toughest to prove.

Requiring the government to prove a willful violation is "a big protection for all of us," says Andrew Weissmann, a New York attorney who for a time ran the Justice Department's criminal investigation of Enron Corp. Generally speaking in criminal law, he says, willful means "you have the specific intent to violate the law."

A lower threshold, attorneys say, involves proving that someone "knowingly" violated the law. It can be easier to fall afoul of the law under these terms...

Overall, more than 40% of nonviolent offenses created or amended during two recent Congresses—the 109th and the 111th, the latter of which ran through last year—had "weak" mens rea requirements at best, according to a study conducted by the conservative Heritage Foundation and the National Association of Criminal Defense Lawyers. The study, one of the few to examine mens rea, was extended to include the most recent Congress at the request of The Wall Street Journal.

Earlier this year, Justice Antonin Scalia, in a dissent from a Supreme Court decision upholding a firearms-related conviction, wrote that Congress "puts forth an ever-increasing volume" of imprecise criminal laws and criticized lawmakers for passing too much "fuzzy, leave-the-details-to-be-sorted-out-by-the-courts" legislation.

Lawmakers on both sides of the aisle worry about the weakening of mens rea. "Over my six years in Congress there have been many times when in discussions with members of Congress I say, 'Look, I know you want to show people how serious you are about crime, but don't put anything on the books that doesn't require criminal intent,'" says Rep. Louie Gohmert, (R., Tex.) a former state judge who wants the federal system reworked.

In a 2009 Judiciary subcommittee hearing on the growth of federal criminal law, Rep. Bobby Scott (D., Va.)., said that mens rea had long served "an important role in protecting those who do not intend to commit wrongful or criminal acts from prosecution and conviction."

The growing number of federal laws with weakened mens rea safeguards is making the venerable legal principle that ignorance of the law is no defense a much riskier proposition for people. That principle made sense, says University of Virginia law professor Anne Coughlin, when there were fewer criminal laws, like murder, and most people could be expected to know them.

But when legislators "criminalize everything under the sun," Ms. Coughlin says, it's unrealistic to expect citizens to be fully informed about the penal code." With reduced intent requirements "suddenly it opens a whole lot of people to being potential violators."
Click here to read the entire story.

Overcriminalization, Coercive Plea Bargaining, and California's Three Strikes Law

The Herald (Monterey County) has an interesting article about California's Three Strikes law and plea bargaining.  Portions of the fascinating article are below.
Across California, hundreds of criminals convicted of non-serious, non-violent, non-sexual crimes last month were no longer sent to prison under the state's massive inmate realignment — but this group of "low level" offenders does not include more than 2,200 inmates currently imprisoned for the exact same crimes.

They are serving life sentences under California's three-strikes law...

Men in Monterey County have been sentenced to 25 years to life for crimes ranging from petty theft to drug possession to second-degree burglary, the same offenses that now qualify others for county jail, probation and rehab programs.

A third strike doesn't have to be serious, violent or sexual. It can even be what criminal attorneys call a "wobbler" — a crime that's allowed to be prosecuted as either a misdemeanor or a felony...

But what third-strike conviction numbers don't reflect is how often the mere threat of applying the law — and therefore, a life sentence — is used to coerce plea agreements and prison time in low-level cases that otherwise could have ended with a few years' probation.

That, says Worthington, is the hidden impact of three strikes.

"I think people would also be surprised to know that you can get multiple strikes in one offense. They think it's for someone who has a long, illustrious career (in crime). But it could be one event with no prior record and it doesn't have to be their third or fourth time in front of a judge."...

One such case was Luther Collins, whose previous two strikes came decades ago, one in 1981. To avoid a third strike, Collins recently accepted a plea deal and six years in prison on a drug possession charge — the same charge that, under realignment, has had others in the county placed on probation.

Worthington said a client of his recently accepted a prison sentence under the threat of a third strike. He asked that the client not be named because a related case is still being adjudicated.

"I don't want to paint him as an angel," Worthington said. "But if he had a different background, he would have gotten felony probation and would have had the opportunity to have it reduced to a misdemeanor and have it dismissed. The two strikes in his background were such a powerful bargaining chip."

The man, in his mid-30s, had two previous strikes for domestic violence.

"He served his time and was released. He's been law abiding and paying his child support since the mid-2000s. He's worked things out with his wife enough to be in his son's life."

Then he blocked a bathroom doorway during a bar argument.

"He never threw a punch. The security footage showed he tried to break it up, and he even pulled his co-defendant away."

He was charged with assault with force likely to cause great bodily injury and threatened with a third strike — which meant life in prison. "You don't have to touch anyone for it to be an assault," Worthington said.

The client ended up taking a deal for four years in prison on a false imprisonment charge.

"He should not be in prison (again) for his past crimes," Worthington said. "That's one of the problems with three-strikes laws — people can never escape it."...

Monterey County public defender Jim Egar calls three strikes "an overwhelming coercive tool."

"It discourages innocent people from going to trial," he said. "The risk of conviction and punishment causes people to plead guilty. ... You have a situation that is ripe for unfair results. Mistakes happen because people are afraid of the risk."

"I don't discount that they may feel leverage," said Monterey County District Attorney Dean Flippo, who has been "heavily involved in the political wars" over three strikes through the years. Flippo said he and other district attorneys initially remained neutral when three strikes became law, but became supportive after they noted its popularity and saw that higher courts upheld it. "We were concerned about the third strike being non-serious and non-violent. But it picked up steam, and we embraced it."

"In the first few years (the initiative passed in 1994) there was tremendous response. They were packing away people and the prisons filled up," he said. "Then it leveled off and it has stayed level."

Flippo acknowledges that in the early years there were some abuses, "the kind that would shock the conscience." But within two years, judges were given the ability to dismiss a strike, in an act known as the Romero decision.

"The first reform was the Romero decision," Flippo said. "Three strikes gave us discretion to say 'You've had as many breaks as the community can give you.' If the judge disagrees with the prosecutor, he has the power to strike the strikes."

Unlike some district attorneys in California, Flippo has had a written three-strikes policy for years.

While it encourages prosecutors to file strikes whenever possible, the policy also allows them to dismiss strikes if there are "compelling" considerations, such as multiple strikes stemming from the same incident, if many years have passed since the strikes occurred, or if the defendant has had a crime-free record for 10 years. Attorneys also can decline to file a strike if the new offense is possessing a small amount of drugs.

Still, Flippo doesn't hesitate to credit the law with lowered crime rates around the state.

"Crime rates have been going down, down, down. I attribute it to harsher sentencing ... along with mobilization of communities" toward prevention and intervention efforts.

Generally, there has been no agreement among criminologists about why crime rates continue to decline, and Worthington cited research that concludes just the opposite.

"You will not find any link between the harshness of the sentence and declining crime rates," he said.
Click here to read the entire story.

Monday, November 14, 2011

J. Edgar - The Movie

Though less about plea bargaining and more about law & order generally, I thought it worth mentioning that the new movie J. Edgar is out in theatres. Here is a link to the trailer. Below is also a portion of a review by the L.A. Times.
"J. Edgar" is a somber, enigmatic, darkly fascinating tale, and how could it be otherwise?

This brooding, shadow-drenched melodrama with strong political overtones examines the public and private lives of a strange, tortured man who had a phenomenal will to power. A man with the keenest instincts for manipulating the levers of government, he headed the omnipotent Federal Bureau of Investigation for 48 years. Though in theory he served eight presidents, in practice J. Edgar Hoover served only himself.
The full review from the L.A. Times is available here. Roger Ebert also has a review, which is available here

Friday, November 11, 2011

The Various Madoff Interviews of Late

Below is a link to the 20/20 interview of Bernard ("Bernie") Madoff's daughter-in-law.  The interview relates to the recent book written by Stephanie Madoff Mack entitled The End of Normal. Here is an abstract of the book.
When the news of Bernard Madoff 's Ponzi scheme broke, Americans were shocked and outraged, perhaps none more so than the unsuspecting members of his own family. After learning that their father's legendarily successful wealth management company was "all just one big lie," Mark and Andrew Madoff turned their father in and cut off all communication with both parents. Mark and his wife, Stephanie, strove to make a fresh start for the sake of their two young children, but Mark could not overcome his sense of betrayal and shame-he and other family members were sued for $200 million in October of 2009. He hung himself on the two-year anniversary of his father's arrest. Left to raise her children as a single mother, Stephanie wrote this memoir to give them a sense of who their father really was, defend his innocence, and put her personal statement on record once and for all. In this candid insider account, she talks about her idyllic wedding to Mark on Nantucket, what it was really like to be a part of the Madoff family, the build-up to Bernard's confession, and the media frenzy that followed. It is about the loss of the fairytale life she knew, adjusting to life with a man she hardly recognized anymore, and the tragic and final loss of her husband.
The 20/20 video is available here. The book is available here from Amazon. The Sentencing Law and Policy Blog has a post regarding the above interview as well, available here.
Bernie Madoff's wife, Ruth Madoff, and son, Andrew Madoff, recently gave their own interview to 60 Minutes. That interview can be found here.

Finally, Bernie Madoff gave his own recent interview to Barbara Walters for an ABC News Barbara Walter's Exclusive. Though Walters was not allowed to bring a tape recorder or video camera to her interview, she discussed Madoff's answers here.  At the same link, one can also learn about the process of conducting the interview.  Walter's writes,
We went through two more gated rooms -- each time a door swung closed behind us, another door swung open in front of us. Finally we were led to a corridor with columns on one side that open to a courtyard in the middle of the complex. The courtyard had beautifully manicured gardens, which we learned were courtesy of the prisoners who maintain the grounds.

We were ushered into the private Assistant Warden's Conference Room. There were two long tables with about 10 chairs at each table. Walls are cinderblock painted white, with Inspirational "TEAM" posters on the wall and a computer in the corner. I was briefed about my visit and the prison rules, and then 10 minutes later Madoff was brought in by the assistant warden.

Madoff was wearing the standard prison uniform. Khaki pants, khaki short-sleeved shirt with white buttons, non-descript black sneakers with Velcro closures. He has gray hair and wears brownish wire-rimmed glasses, with bifocal lenses. He has an occasional tick (blinking of the eyes) which gets worse when he is discussing difficult matters. I was allowed to shake hands with him, then we sat down to talk.

Finally, I sat face to face with inmate #61727-054, the man many consider a monster. 
One can also read more about Madoff's answers to Walter's questions here
Convicted Ponzi schemer Bernard Madoff was forced to "let ... go" of his wife almost a year ago and is wracked by "horrible nightmares" as he sits in a North Carolina prison, he told ABC News' Barbara Walters in an exclusive interview.

Though he "can live with" the anger of people he defrauded out of billions of dollars and he is adjusting to the rhythms of life in prison, even at 73 years old, he is troubled by anger and turmoil within his own family.

"Not seeing my family and knowing they hate me" is the worst thing about being in prison, he said. "I betrayed them."

Asked what he'd like to say to his grandchildren, he said, without apparent emotion, "I am sorry to have caused them pain."

Thursday, November 10, 2011

Supreme Court Examines Plea Bargaining and Ineffective Assistance of Counsel

The LA Times has a nice editorial examining the two plea bargaining cases heard by the Supreme Court last week - Frye and Cooper.  The cases address the issue of defendants who turned down plea deals due to attorney malpractice.  Should such defendants be able to recpature the deals they previously rejected?

Below is a portion of the LA Times piece.
In 2007, Galin E. Frye was charged by the state of Missouri with driving with a revoked license, a felony because he had several previous convictions. The district attorney offered Frye's lawyer a plea bargain under which Frye would serve only 90 days in prison. The lawyer, however, didn't inform Frye of the offer, and Frye ultimately pleaded guilty and received a three-year sentence.

The second case stemmed from a 2003 incident in which Anthony Cooper shot a woman in her buttock and thighs, causing serious injuries. Prosecutors offered Cooper's lawyers a plea deal in which he would serve a minimum sentence of 51 to 85 months. Cooper turned down the offer because his attorney inaccurately (and bizarrely) told him that he couldn't be convicted of intent to murder because his victim was shot below the waist. Cooper went to trial, was convicted and was sentenced to 185 to 360 months.
At oral arguments last week, some justices suggested that such errors were harmless if the defendant subsequently received a fair trial. But, as Cooper can attest, that's not true: Mistakes of this sort can be extremely harmful. Justice Elena Kagan succinctly summed up the injustice of penalizing defendants for the blunders of their lawyers: "Here the person is sitting in prison for three times as long as he would have been sitting in prison had he had effective assistance of counsel at the plea-bargaining stage."
The criminal justice system would grind to a halt if every defendant insisted on his right to trial. But even those who regard plea bargains as a necessary evil must acknowledge that they should be fair.
In a 1984 decision, the court defined ineffective assistance of counsel this way: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the 6th Amendment. Second, the defendant must show that the deficient performance prejudiced the defense." Those conditions are clearly met when an attorney fails to tell a client about a favorable plea offer or discourages him from accepting one on the basis of false information. The Supreme Court should so rule.
An ongoing discussion regarding the cases is available at the Scotus Blog here

The transcripts from the Supreme Court arguments are availabe here.

In an article that will appear later this year in the Utah Law Review, I take on the issue of plea bargaining and its constitutionality as currently utilized by prosecutors. The abstract reads as follows.

If any number of attorneys were asked in 2004 whether Lea Fastow’s plea bargain in the Enron case was constitutional, the majority would respond with a simple word – Brady. Yet while the 1970 Supreme Court decision Brady v. United States authorized plea bargaining as a form of American justice, the case also contained a vital caveat that has been largely overlooked by scholars, practitioners, and courts for almost forty years. Brady contains a safety-valve that caps the amount of pressure that may be asserted against defendants by prohibiting prosecutors from offering incentives in return for guilty pleas that are so coercive as to overbear defendants’ abilities to act freely. Further, as a means to discern whether the safety-valve fails in the future and prosecutors are offering unconstitutional incentives, the Brady Court created a litmus test regarding innocent defendants. The Court stated that should the plea bargaining system begin to operate in a manner resulting in a significant number of innocent defendants pleading guilty the Court would be forced to reexamine the constitutionality of bargained justice. That plea bargaining today has a significant innocence problem indicates that the Brady safety-valve has failed and, as a result, the constitutionality of modern day plea bargaining is in great doubt.

The plea bargaining article is available here.  A follow-up article discussing the topic further and examining the prevalence of innocent people who falsely confess through plea bargains will be available later this year.

Tuesday, November 8, 2011

ACLU Report: Banking on Bondage - Private Prisons and Mass Incarceration

The ACLU has issued an interesting report on private prisons entitled Banking on Bondage. The introduction to the executive summary is below.
The imprisonment of human beings at record levels is both a moral failure and an economic one—especially at a time when more and more Americans are struggling to make ends meet and when state governments confront enormous fiscal crises. This report finds, however, that mass incarceration provides a gigantic windfall for one special interest group—the private prison industry—even as current incarceration levels harm the country as a whole. While the nation’s unprecedented rate of imprisonment deprives individuals of freedom, wrests loved ones from their families, and drains the resources of governments, communities, and taxpayers, the private prison industry reaps lucrative rewards. As the public good suffers from mass incarceration, private prison companies obtain more and more government dollars, and private prison executives at the leading companies rake in enormous compensation packages, in some cases totaling millions of dollars.
The ACLU report is available here.

I recently published an article regarding prisons in the Stanford Law & Policy Review.  The article describes my experiences touring prisons in the United States, Israel, and the Netherlands. 

In 2004, British authorities arrested Abu Hamza al-Masri, an Egyptian born cleric sought by the United States for his involvement in instigating terrorist attacks. As authorities prepared to extradite him in July 2010, the European Court of Human Rights issued a stay. According to the court, al-Masri’s claims that maximum-security prisons in the United States violate European human rights laws prohibiting torture and degrading treatment warranted further examination. Regardless of the eventual resolution of the al-Masri case, the European Court of Human Rights’ inability to summarily dismiss these assertions demonstrates something quite troubling. At a minimum, the court’s actions indicate that a perception has developed in the world that the American penal system has gone astray. But are prisons in the United States that much different from those found in other parts of the world?

In the spring and summer of 2010, I traveled to prisons in the United States, The Netherlands, and Israel to compare the way each country detains its most violent and culpable residents. The results of this research indicate something quite striking about what makes prisons around the world successful and offer a sobering examination of the deficiencies present in many under-funded American institutions.

This article will begin by examining the cultures of four prison facilities: two prisons in America (one federal and one state), a prison in The Netherlands, and a prison in Israel. For each institution, this article will offer a narrative of my observations regarding the prison’s structure and security, living conditions, and programming. In particular, the examination of each prison facility will include discussion of the apparent significant impact of each prison’s culture on the perceived rates of violence, the financial costs of administration, and the achievement of moral obligations regarding the treatment of prisoners. Through this analysis, this article will first propose that prisons with cultures that create a sense of community within the inmate population benefit from lower rates of violence. Second, the article will contend that lower rates of violence also lead to reduced costs of administration. Finally, this article will argue that regardless of the above-described benefits it is also morally correct to create positive prison environments rather than permit prisons to become warehouses for societal outcasts.
The Stanford Law & Policy Review prison article is available here for free download.

Former Schottenfeld Group LLC Trader Sentenced to No Prison for Cooperation



According to Bloomberg, David Plate, a former trader at Schottenfeld Group LLC has received no prison time for his role in the massive Galleon Group insider trading case.
David Plate, who admitted to participating in an insider-trading ring with ex-Galleon Group LLC trader Zvi Goffer and testified at his trial, was sentenced to three years’ probation and six months’ house arrest.
Plate, 36, a former trader at Schottenfeld Group LLC, was one of 26 people charged in two overlapping insider-trading cases involving Galleon Group founder Raj Rajaratnam. He pleaded guilty in July 2010 to securities fraud and conspiracy to commit securities fraud and testified at the trial of Goffer, his brother Emanuel Goffer and trader Michael Kimelman.
U.S. District Judge Richard Sullivan in Manhattan, who presided over the case, today called Plate a “significant”prosecution witness who deserved a reduced term because of the help he gave to the government. He cited the recommendation of Assistant U.S. Attorney Andrew Fish, who said Plate provided information about the insider-trading scheme that no other witness knew.
“Your cooperation was substantial and you were a very important witness at the trial,” Sullivan said.
Plate, who was arrested along with 14 others in November 2009, told the U.S. that while working at Schottenfeld, he received inside information from Zvi Goffer about the acquisitions of 3Com Corp. and Axcan Pharma Inc. and traded on that information in his account and in an account he managed for his sister.

Friday, November 4, 2011

Dervan on Overcriminalization and Plea Bargaining

In my recent article entitled "Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining and Overcriminalization," which appeared in George Mason's Journal of Law, Economics and Policy, I discuss the manner in which plea bargaining and overcriminalization rely on each other for their very existence.  An abstract for the article is below, and you access a copy of the article by clicking here and downloading it for free.
In discussing imperfections in the adversarial system, Professor Ribstein notes in his article entitled Agents Prosecuting Agents, that “prosecutors can avoid the need to test their theories at trial by using significant leverage to virtually force even innocent, or at least questionably guilty, defendants to plead guilty.” If this is true, then there is an enormous problem with plea bargaining, particularly given that over 95% of defendants in the federal criminal justice system succumb to the power of bargained justice. As such, this piece provides a detailed analysis of modern-day plea bargaining and its role in spurring the rise of overcriminalization. In fact, this article argues that a symbiotic relationship exists between plea bargaining and overcriminalization because these legal phenomena do not merely occupy the same space in our justice system, but also rely on each other for their very existence.

Oil Refiner Facilities Manager Pleads Guilty in Environmental Case

BNA White Collar Crime Report states that a former manager for an oil refiner has pleaded guilty to "negligent endangerment in connection with the release of extremely high levels of hydrogen sulfide" in Louisiana. 
According to the government press release (available here):
The former asphalt facilities manager of Pelican Refining Company LLC (PRC), pleaded guilty today [october 31, 2011] to the crime of negligent endangerment under the Clean Air Act in federal court in Lafayette, La., announced Ignacia S. Moreno, Assistant Attorney General for the Environment and Natural Resources Division at the Department of Justice and Stephanie A. Finley, U.S. Attorney for the Western District of Louisiana.
Mike LeBleu served as the asphalt facilities manager of the Pelican Refinery in Lake Charles, La., from May 9, 2005, through Oct. 15, 2009. LeBleu was a member of upper management with regard to the asphalt plant and had overall responsibility for the plant’s operations and personnel. According to court documents, LeBleu negligently caused the release of hydrogen sulfide (H2S), an extremely hazardous substance, into the air, which placed other persons in imminent danger of death and serious bodily injury.
LeBleu faces a maximum of one year in prison and a fine of $100,000.
According to government, the company, Pelican Refining Company LLC, and others have also pleaded guilty in the matter. 
In related cases, PRC pleaded guilty on Oct. 12, 2011, to felony violations of the Clean Air Act and obstruction of justice for its mismanagement of the refinery. Sentencing is scheduled for Dec. 15, 2011. Additionally, the company’s vice-president and general manager, Byron Hamilton, pleaded guilty to Clean Air Act negligent endangerment charges on July 6, 2011. Sentencing has yet to be scheduled for Hamilton.

Underwear Bomber Pleads Guilty

Though I was traveling when this occurred, I wanted to post a link to a New York Times story regarding the guilty plea of Umar Farouk Abdulmutallab, known as the underwear bomber. On December 25, 2009, Abdulmutallab attempted to bring down a plane on its approach to Detroit from Amsterdam by detonating explosives hidden in his underwear. The plane was carrying nearly 300 passengers. Fortunately, the explosives failed and pilots were able to make an emergency landing at Detroit where Abdulmutallab was taken into custody.

According to the New York Times, "Prosecutors and federal agents seemed stunned, if pleased, and declared that the plea was evidence that the American court system, as opposed to a military tribunal, could bring a suitable outcome to a terrorism case."

The New York Times story continued:

Almost two years after fellow passengers flying aboard Northwest Airlines Flight 253 watched in panic and confusion as smoke and flames rose from Mr. Abdulmutallab’s lap, he pleaded guilty to eight federal crimes, including conspiracy to commit an act of terrorism, attempted murder and attempted use of a weapon of mass destruction. He was offered no deal from prosecutors in exchange for his plea. He faces sentencing in January, but prosecutors said the nature of some of the crimes he pleaded guilty to automatically required a life sentence with no chance of parole.

The choice appeared less a strategic legal calculation than an opportunity for Mr. Abdulmutallab, who has described himself as a member of Al Qaeda and who prosecutors say conspired in his plan with other members of Al Qaeda, to make a public statement certain to reach a wide audience.

After telling Judge Nancy G. Edmunds that he was indeed pleading guilty to each count against him, Mr. Abdulmutallab read a statement that he had written saying that his behavior may have violated American law but that it was in keeping with Muslim law, and that his efforts to harm Americans were retribution for American acts around the world.

“I attempted to use an explosive device which in the U.S. law is a weapon of mass destruction, which I call a blessed weapon to save the lives of innocent Muslims, for U.S. use of weapons of mass destruction on Muslim populations in Afghanistan, Iraq, Yemen and beyond,” Mr. Abdulmutallab, a Nigerian citizen in his 20s, said quietly and calmly. In repeated appearances in court, Mr. Abdulmutallab, the well-educated son of a wealthy family, has almost seemed to have two personas: a polite, silent observer who appeared small at the defense table, and an unruly onlooker who would suddenly yell out messages of support for Osama bin Laden and Anwar al-Awlaki, who was recently killed by a missile from an American drone. The American authorities have described him as a leading figure in a Qaeda affiliate in Yemen.

“If you laugh at us now,” he said Wednesday, during the statement in open court that went on for several minutes, “we will laugh at you later.”

...In Washington, Eric H. Holder Jr., the attorney general, issued a statement on the verdict. “Contrary to what some have claimed, today’s plea removes any doubt that our courts are one of the most effective tools we have to fight terrorism and keep the American people safe,” he said. “Our priority in this case was to ensure that we arrested a man who tried to do us harm, that we collected actionable intelligence from him and that we prosecuted him in a way that was consistent with the rule of law.”


In an article I published last year, I discuss some of the motivations behind terrorist suspects pleading guilty. The article is available here.

Monday, September 26, 2011

NYT Examines Plea Bargaining and Sentencing Leverage

The New York Times had an excellent piece on plea bargaining yesterday - available here.
After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties.

Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

One crucial, if unheralded, effect of this shift is now coming into sharper view, according to academics who study the issue. Growing prosecutorial power is a significant reason that the percentage of felony cases that go to trial has dropped sharply in many places.

Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms. By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12. The decline has been even steeper in federal district courts.

Cases like Florida v. Shane Guthrie help explain why. After Mr. Guthrie, 24, was arrested here last year, accused of beating his girlfriend and threatening her with a knife, the prosecutor offered him a deal for two years in prison plus probation.

Mr. Guthrie rejected that, and a later offer of five years, because he believed that he was not guilty, his lawyer said. But the prosecutor’s response was severe: he filed a more serious charge that would mean life imprisonment if Mr. Guthrie is convicted later this year.

Because of a state law that increased punishments for people who had recently been in prison, like Mr. Guthrie, the sentence would be mandatory. So what he could have resolved for a two-year term could keep him locked up for 50 years or more.

The decrease in trials has also been a consequence of underfinanced public defense lawyers who can try only a handful of their cases, as well as, prosecutors say, the rise of drug courts and other alternative resolutions.

The overloaded court system has also seen comparatively little expansion in many places, making a huge increase in plea bargains a cheap and easy way to handle a near-tripling in felony cases over the past generation.

But many researchers say the most important force in driving down the trial rate has been state and federal legislative overhauls that imposed mandatory sentences and other harsher and more certain penalties for many felonies, especially those involving guns, drugs, violent crimes and repeat offenders.

Stiffer punishments were also put in place for specific crimes, like peddling drugs near a school or wearing a mask in certain circumstances. And legislators added reams of new felony statutes, vastly expanding the range of actions considered illegal.

These tougher penalties, by many accounts, have contributed to the nation’s steep drop in crime the past two decades. They have also swelled the prison population to levels that lawmakers in some states say they can no longer afford, and a few have rolled back some laws.

The article goes on to discuss the "trial penalty" and its impact on plea bargaining rates. Read the entire story here.

Sunday, August 21, 2011

"Memphis Three" Plead Guilty (In a Way) and Go Home

After almost twenty years in prison, three young boys known as the "Memphis Three" were released from prison last week. In a scene reminiscent of the Kerry Max Cook plea deal (a case in which the defendant was later established to be innocent as a result of DNA testing), the three plead guilty in return for their freedom. The case dates back to 1993 and the horrific murder of three 8 year old boys.


It was May 1993 when the nude bodies of three 8-year-old boys, Christopher Byers, Stevie Branch and Michael Moore, were found in a drainage canal in Robin Hood Hills, a wooded area in the poor Arkansas town of West Memphis. The bodies appeared to have been mutilated, and their hands were tied to their feet.

The grotesque nature of the murders, coming in the midst of a nationwide concern about satanic cult activity, especially among teenagers, led investigators from the West Memphis Police Department to focus on Mr. Echols, a troubled yet gifted 18-year-old who wore all black, listened to heavy metal music and considered himself a Wiccan. Efforts to learn more about him through a woman cooperating with the police led to Mr. Misskelley, a 17-year-old acquaintance of Mr. Echols’s.

After a nearly 12-hour police interrogation, Mr. Misskelley confessed to the murders and implicated Mr. Echols and Mr. Baldwin, who was 16 at the time, though his confession diverged in significant details, like the time of the murders, with the facts known by the police. Mr. Misskelley later recanted, but on the strength of that confession he was convicted in February 1994.

Mr. Echols and Mr. Baldwin soon after were convicted of three counts of capital murder in a separate trial in Jonesboro, where the proceedings had been moved because of extensive publicity in West Memphis. The convictions were largely based on the testimony of witnesses who said they heard the teenagers talk of the murders, and on the prosecution’s argument that the defendants had been motivated as members of a satanic cult. Mr. Misskelley’s confession was not admitted at their trial, though recently a former lawyer for that jury’s foreman filed an affidavit saying that the foreman, determined to convict, had brought the confession up in deliberations to sway undecided jurors.
After much pressure, the Arkansas Supreme court ruled last year that there was enough evidence to call a hearing to determine if there should be a new trial. The hearing was scheduled for December 2011. Instead of moving forward with a case the prosecution knew it would lose, however, a deal was struck.


Under the seemingly contradictory deal, Judge David Laser vacated the previous convictions, including the capital murder convictions for Mr. Echols and Mr. Baldwin. After doing so, he ordered a new trial, something the prosecutors agreed to if the men would enter so-called Alford guilty pleas. These pleas allow people to maintain their innocence and admit frankly that they are pleading guilty because they consider it in their best interest.

The three men did just that, standing in court and quietly proclaiming their innocence but at the same time pleading guilty to charges of first- and second-degree murder. The judge then sentenced them to 18 years and 78 days, the amount of time they had served, and also levied a suspended sentence of 10 years.

The prosecuting attorney, Scott Ellington, said in an interview that the state still considered the men guilty and that, new DNA findings notwithstanding, he knew of no current suspects.

“We don’t think that there is anybody else,” Mr. Ellington said, declaring the case closed.

Asked how he could free murderers if he believed they were guilty, he acknowledged that the three would likely be acquitted if a new trial were held, given the prominent lawyers now representing them, the fact that evidence has decayed or disappeared over time and the death or change of heart of several witnesses. He also expressed concern that if the men were exonerated at trial, they could sue the state, possibly for millions.
Read the entire New York Times article here.

As with so many other cases, it is interesting to see how the courts can permit Alford pleas that directly contradict the established boundaries of such agreements as laid down by the Supreme Court. In North Carolina v. Alford, the Supreme Court stated that a defendant could plead guilty in return for some benefit, such as a reduced sentence, while continuing to maintain his or her innocence. The Court inserted a caveat, however, requiring the “record before the judge contain[] strong evidence of actual guilt” to ensure the rights of the innocent are protected and guilty pleas are the result of “free and intelligent choice.” The use of an Alford plea in the Memphis Three case, a case where the prosecutor admitted the evidence was insufficient to convict, brings the constitutionality of such modern day plea bargaining into question once again.
Read an article regarding the constitutionality of modern day plea bargaining here.

Thursday, August 4, 2011

Espionage, Incarceration, and Plea Bargaining in Georgia

The New York Times has a very interesting article regarding espionage, incarceration, and incentives to plead guilty in Georgia.


TBILISI, Georgia — Last week, several days after the photographer Giorgi Abdaladze confessed to selling classified documents to Russia’s foreign intelligence service, he was released without being sentenced to a prison term or even given a fine. After Georgian officials had publicly excoriated Mr. Abdaladze as being a participant in a brazen espionage campaign, his 15-day prosecution ended as abruptly as it had begun.

The brief case against Mr. Abdaladze and three other photographers was a baffling one, even in a season of high Georgian anxiety about covert Russian activities. Because it ended in a plea agreement, like an overwhelming number of criminal prosecutions in Georgia, it will never be resolved in court, and all four of the accused risk spending years in prison if they violate their deal by speaking about it.

It has left behind a deep rift between parts of Georgian society — those who believe Russian agents have been able to infiltrate the closest circles around President Mikheil Saakashvili, and those who believe the government has entangled innocent people in its claims against Russia. Western officials, who must weigh whether to confront Russia over a series of Georgian charges, have been cautious in their assessment.

“The evidence is more circumstantial than direct, but that doesn’t exclude the possibility that there is more,” said a senior Western diplomat, who called the case “a bit of a Rorschach test for this society.”

“The real tragedy in this is corrosion of public trust in law enforcement, and especially the judicial system,” said the diplomat, who requested anonymity in keeping with protocol. “People in Western capitals look at this and say, ‘Is this paranoia taken to an illogical extreme? What are you seeing that the rest of us don’t see?’ ”

The photographers, meanwhile, have returned to public life as confessed traitors....

It was a jaw-dropping case from the very beginning, not only because of the way the suspects were detained — plainclothes officers knocked on their doors between 2 and 3 a.m., waking their families and searching the premises — but also because of who they were.

As Mr. Saakashvili’s personal photographer, Irakli Gedenidze, 37, could be seen for years scrambling after the mercurial president, like a shadow with a zoom lens. His wife, Natia, also a photographer, was detained with him but released two days later on bail. Zurab Kurtsikidze, 38, worked for European Pressphoto Agency, a news service based in Frankfurt.

Mr. Abdaladze, 38, worked on contract for the Foreign Ministry but also chased after breaking news; his 2008 photograph of a woman reaching up from the flaming wreckage of a building became one of the iconic images from Georgia’s brief war with Russia.

Soon afterward, Georgia’s Interior Ministry began releasing evidence that the three men — whose longtime friendship is documented on their Facebook pages — were in fact functioning as an underground spy cell.

Mr. Gedenidze and his wife gave confessions almost immediately. In a video recording shown on Georgian news broadcasts, Mr. Gedenidze said Mr. Kurtsikidze had initially purchased pictures on behalf of his photo agency, but then blackmailed him into passing on documents, which he suspected were sent to foreign intelligence agents....

Public pressure over the case was mounting, however. Journalists protested outside the Interior Ministry, demanding that the government release hard evidence to substantiate its case. Mr. Abdaladze, who had hired a prominent lawyer in the political opposition, published a letter saying that the charges were in retaliation for him having distributed photographs of a May 26 rally that had been violently broken up by the police. He vowed to maintain his innocence.

A few days later, as legal teams began preparing for a September trial, the case came to a halt. Lawyers for Mr. Kurtsikidze and Mr. Abdaladze announced that their clients had agreed to plead guilty to espionage. They were released on probation, with conditional sentences ranging from six months to three years. Georgia’s public defender, Giorgi Tughushi, said that he had met with the defendants while they were in custody and that none of them said they had come under physical or psychological pressure to confess.

In some ways, it was not an unusual outcome. In 2010, 80 percent of criminal cases in Georgia ended in plea agreements, according to a recent report from Thomas Hammarberg, the Council of Europe’s human rights commissioner. Because of tough sentencing practices and a near certainty of conviction at trial — the average acquittal rate in trial courts last year was 0.2 percent — the plea-bargaining system has become difficult for defendants to resist, even if they would like to argue their innocence in court, the report warned.
Read the entire article here.

Thursday, July 7, 2011

Strauss-Kahn Will Not Strike Plea Deal

According to CNN, French financier Dominique Strauss-Kahn's attorney has stated that his client will not accept any plea bargain and "won't plead guilty to anything." These comments followed an extensive meeting between defense attorneys representing Strauss-Kahn and prosecutors from the Manhattan District Attorney's office. Just a week ago, District Attorney Cyrus Vance Jr. acknowledge that serious questions existed regarding the credibility of Strauss-Kahn's accuser.

The 62-year-old former chief of the International Monetary Fund is charged with sexual abuse and attempted rape of a hotel maid in May.

While Wednesday's meeting with prosecutors was "constructive," Strauss-Kahn's attorneys said, prosecutors maintained that they are not ready to drop the charges.

"The investigative process is continuing, and no decisions have been made," said Manhattan District Attorney spokeswoman Erin Duggan.

The accuser's civil attorney has called on Vance to recuse himself from prosecuting the case and appoint a special prosecutor.

"We make this request in order to protect the integrity of the prosecution of Mr. Strauss-Kahn, to ensure the victim's rights are not further prejudiced by deliberate acts seeking to undermine her credibility, to insulate your office from the appearance of conflict of interest, and to ensure that future victims of sex crimes, regardless of their backgrounds, are not dissuaded from coming forward," attorney Kenneth P. Thompson wrote in a four-page letter to Vance.

But Duggan said Vance will not recuse himself. "Any suggestion that this office should be recused is wholly without merit," she said in a statement.

Thompson told CNN his client has admitted mistakes, but says that has nothing to do with what happened in Strauss-Kahn's hotel suite. "Despite everything," he told CNN Tuesday, "she wants to get on the witness stand. That's all she asks for."
Read the entire CNN story here.

Monday, June 6, 2011

John Edwards Offered Misdemeanor Plea Deal Before Indictment

According to multiple sources, including CBS News, Johns Edwards was offered a misdemeanor plea deal before prosecutors indicted him last week for soliciting and spending more than $925,000 to hide his mistress and baby from the public during his 2008 presidential bid.

According to CBS News:

John Edwards was on the verge of accepting a plea deal, according to reports, from federal prosecutors who last week charged him of using more than $900,000 in campaign contributions to keep his pregnant mistress out of sight during his 2008 run for president.

Just before Edwards was indicted Friday, prosecutors gave him a chance to plead guilty to just three misdemeanor charges, the Raleigh News and Observer reports, citing multiple unnamed sources familiar with the investigation. The deal likely would have allowed the former Democratic vice presidential nominee to keep his law license, but he would have had to serve up to six months in prison.

CBS affiliate WRAL News reported the same details of plea deal negotiations. The deal reportedly fell through because Edwards and his team wanted at least a chance to argue before a judge for an alternative to prison time, such as home arrest.

For most of the negotiations, prosecutors reportedly wanted Edwards to admit to at least one felony, which may or may not have included prison time. Edwards, however, reportedly does not believe he committed a felony.
Read the entire CBS News story here.

Friday, June 3, 2011

Administration Focusing Enforcement Efforts on Corporate Officers and Employees

According to Fox News, the Obama administration has decided to take a "cut-the-head-off-the-snake" approach to federal corporate crime. Federal officials has revealed that they will move to punish individual executives and employees more often when crimes occur within corporations. Thus far, this strategy of increased punishment of individuals, instead of just the corporations, has focused on health care fraud and immigration violations.

As for health care, federal investigators have opened the door to go after executives for alleged crimes within their company hierarchies.

In one prominent case, the health department's inspector general in April notified the CEO of Forest Laboratories that it was considering barring him from doing business with federal health programs. The reason? A subsidiary of his pharmaceutical firm had pleaded guilty to charges that it defied federal warnings not to distribute an unapproved drug and improperly promoted another drug to children.

But the company said CEO Howard Solomon had not been personally implicated in that case, and that the only rationale given by the IG was that he was "associated with" Forest. Company officials at the time called the threat "completely unwarranted" and suggested the inspector general's office was "beyond its legal authority." The company described the action as unprecedented.

Reached for comment, a company representative told FoxNews.com the firm would formally challenge the inspector general's potential action before a mid-June deadline.

In addition to that case, the Food and Drug Administration has also issued guidance explaining how it can target corporate executives for violations even if they did not personally commit those violations or know about them.

The FDA guidance triggered a flurry of alerts from law firms. And both developments prompted a complaint last fall from the Washington Legal Foundation, which suggested the administration's rationale might not hold up in court.
Read the entire Fox News story here. As mentioned in the Fox News article, the Washington Legal Foundation responded to the new focus from the administration.

The Washington Legal Foundation (WLF) this week called on the Food and Drug Administration to abandon its announced plans to seek increased criminal prosecution of company executives for promotional activities in instances where the executives never participated in, encouraged, or had knowledge of the alleged violations. WLF expressed its concerns in a letter to Eric Blumberg, Deputy Chief for Litigation in the FDA’s Office of Chief Counsel, in response to recent comments Blumberg made calling for increased criminal prosecution of executive officers in pharmaceutical companies.

According to multiple press accounts, Blumberg spoke at the Food and Drug Law Institute (FDLI) Enforcement Conference in Washington, D.C. on October 13, 2010, where he announced the view that large, monetary settlements (such as FDA’s recent record-breaking $2.3 billion settlement with Pfizer) were “not getting the job done” to adequately deter off-label promotion, and that he urged federal prosecutors “to criminally charge individuals at all levels in the company.”

Blumberg’s remarks follow the recent guidance released by the Office of the Inspector General (OIG) of the Department of Health and Human Services (HHS), which expands the basis for excluding individuals, including pharmaceutical executives, from participating in federal health care programs. When an individual is excluded, federal health care programs like Medicare and Medicaid will not pay for any item or service furnished, ordered, or prescribed by that individual. Because entities that employ an excluded individual for providing items or services to federal program beneficiaries are subject to monetary penalties, such exclusion operates as a de facto ban on working in the health care industry.

“Subjecting every manager and executive in the industry to potential criminal liability every time an off-label promotion occurs is extremely shortsighted,” WLF Senior Litigation Counsel Cory Andrews wrote in a letter to Blumberg. “In the wake of such an aggressive use of the FDCA misdemeanor, industry executives will have little incentive to continue working in the pharmaceutical sector.”
Read the entire WLF press release here.

Thursday, June 2, 2011

New York Times Asks Why So Few Have Been Prosecuted After Financial Crisis

The New York Times this week published an interesting article examining the government's response to the financial crisis and those who brought the economy to the brink. Of particular focus, the article examines how it is possible that the only person at Goldman Sachs sued by the Securities and Exchange Commission for selling mortgage-securities investments is a 28 year-old mid-level executive named Fabrice Tourre.


At the height of the housing boom, the 26th floor of Goldman Sachs’s former headquarters on Broad Street in Lower Manhattan was the nerve center of Goldman’s fast-growing mortgage trading business.

Hundreds of employees worked closely in teams, devising mortgage-based securities — billions of dollars’ worth — that were examined by lawyers, approved by management, then sold to investors like hedge funds, commercial banks and insurance companies.

At one trading desk sat Fabrice Tourre, a midlevel 28-year-old Frenchman who was little known not just outside Goldman but even inside the firm. That changed three years later, in 2010, when he achieved the dubious distinction of becoming the only individual at Goldman and across Wall Street sued by the Securities and Exchange Commission for helping to sell a mortgage-securities investment, in one of the hundreds of mortgage deals created during the bubble years.

How Mr. Tourre alone came to be the face of mortgage-securities fraud has raised questions among former prosecutors and Congressional officials about how aggressive and thorough the government’s investigations have been into Wall Street’s role in the mortgage crisis.

Across the industry, “it’s impossible that only one person was involved with fraudulent activities in connection to the sales of these mortgage securities,” said G. Oliver Koppell, a New York attorney general in the 1990s and now a New York City councilman.

In the fall of 2009, when Mr. Tourre learned that he had become a target of investigators for helping to sell a mortgage security called Abacus, he protested that he had not acted alone.

That fall, his lawyers drafted private responses to the S.E.C., maintaining that Mr. Tourre was part of a “collaborative effort” at Goldman, according to documents obtained by The New York Times. The lawyer added that the commission’s view of his role “would have Mr. Tourre engaged in a grand deception of practically everyone” involved in the mortgage deal.

Indeed, numerous other colleagues also worked on that mortgage security. And that deal was just one of nearly two dozen similar deals totaling $10.9 billion that Goldman devised from 2004 to 2007 — which in turn were similar to more than $100 billion of such securities deals created by other Wall Street firms during that period.

While Goldman paid $550 million last year to settle accusations that it had misled investors who bought the Abacus mortgage security, no other individuals at the bank have been named. Now, however, as criticism has grown about the lack of cases brought by regulators, the scope of the inquiries appears to be widening. The United States attorney general, Eric H. Holder Jr., has said publicly that his lawyers were reviewing possible charges against other Goldman officials in the wake of a Senate investigation that produced reams of documents detailing other questionable decisions that were made in the firm’s mortgage unit.

The Senate inquiry was one of several in the past three years. These investigations by Congressional leaders and bankruptcy trustees — into the likes of Washington Mutual, Lehman Brothers and the ratings agencies — were undertaken largely to understand what had gone wrong in the crisis, rather than for law enforcement. Yet they uncovered evidence that could be a road map for federal officials as they decide whether to bring civil and criminal cases.

One person who already has come under investigation is Jonathan M. Egol. A senior trader at Goldman who worked closely with Mr. Tourre, he had a negative view on the housing market early on, and took a lead role in creating mortgage securities like Abacus that enabled Goldman and certain clients to place bets that proved profitable when the housing market collapsed.

Last year the S.E.C. examined Mr. Egol’s role in the Abacus deal in its lawsuit, according to a report by the commission’s inspector general. But Mr. Egol, now a managing director at the bank, was not named in the case, in part because he was more discreet in his e-mails than Mr. Tourre was, so there was less evidence against him, according to a person with knowledge of the S.E.C.’s case.

Though Mr. Tourre was a more junior member of the Goldman team, the S.E.C. case against him was bolstered by colorful e-mails he wrote, calling mortgage securities like those he created monstrosities and joking that he sold them to “widows and orphans.”

The S.E.C. declined to comment about its focus on Goldman and Mr. Tourre, beyond pointing to a section in its complaint that said that Mr. Tourre had been “principally responsible” for the Abacus deal in the case.

A spokesman for Goldman, Lucas van Praag, did not dispute that Mr. Tourre had worked on the Abacus deal as part of a collaborative team. But he said that the bank had disagreed with many of the conclusions about its mortgage unit contained in the recent Senate report. Mr. Egol and his lawyer did not respond to inquiries for comment.

As the government continues to investigate the activities of Goldman and other banks, it is uncertain whether other individuals will be named. Neil M. Barofsky, who as the first inspector general of the Troubled Asset Relief Program, the federal bank bailout program, investigated whether banks had properly obtained and handled the money they received, said prosecutors should look as high up as possible.

“Obviously in any investigation that results in charges against a company,” he said, “you’d like to see the highest-ranking person responsible for the conduct at the company to be held accountable.”
The article also contains an interesting graphic showing that only two criminal prosecutions have been brought as a result of the financial crisis. In the first, two former executives at Bear Stearns were charged with misleading investors in two hedge funds about the quality of mortgage assets. The Bear Stearns defendants were found not guilty in November 2009. In the second, several former executives of a mortgage company and its banking partner were charged with fraud for issuing false mortgages to obtain money from government-related entities. Six of these defendants pleaded guilty.

Read the entire New York Times article here.

Garrido Sentenced to 431 Years to Life in Prison

According to CNN, Phillip Garrido was sentenced Thursday to 431 years to life in prison for the kidnapping and sexual assault of Jaycee Dugard. Dugard was held captive by Garrido and his wife from age 11 to 29. Garrido's wife was sentenced to 36 years to life in prison for her role in the abduction. Both defendants previously pleaded guilty and waived their rights to appeal.

The Garridos, a married couple, pleaded guilty in late April in El Dorado County Superior Court to charges of kidnapping and sexual assault.

Dugard was abducted from the street in front of her home in South Lake Tahoe, California, in 1991. Authorities found her in 2009. During those years, the Garridos held Dugard in a hidden compound on their home's grounds in Antioch, California. She bore two daughters, fathered by Phillip Garrido.

Dugard's written statement, presented during Phillip Garrido's sentencing, was lengthy.

"I chose not to be here today because I refuse to waste another second of my life in your presence. I've chosen to have my mom read this for me," Dugard wrote.

"Phillip Garrido, you are wrong. I could never say that to you before, but I have the freedom now and I am saying you are a liar and all of your so-called theories are wrong. Everything you have ever done to me has been wrong and someday I hope you can see that.

"What you and Nancy did was reprehensible. You always justified everything to suit yourself but the reality is and always has been that to make someone else suffer for your inability to control yourself and for you, Nancy, to facilitate his behavior and trick young girls for his pleasure is evil. There is no God in the universe that would condone your actions," Dugard said.

"To you, Phillip, I say that I have always been a thing for your own amusement. I hated every second of every day of 18 years because of you and the sexual perversion you forced on me," she continued.

"To you, Nancy, I have nothing to say.

"Both of you can save your apologies and empty words. For all the crimes you have both committed I hope you have as many sleepless nights as I did.

"Yes, as I think of all of those years I am angry because you stole my life and that of my family. Thankfully I am doing well now and no longer live in a nightmare. I have wonderful friends and family around me. Something you can never take from me again. You do not matter any more," Dugard wrote...

Monday, May 23, 2011

A Scathing Critique of the Role of Plea Bargaining in an Infamous Texas Case

The Texas Monthly has published a scathing critique of the role of plea bargaining in an infamous Texas case. The case, referred to locally as the "Mineola Swingers Club" case, involved shocking allegations of child sexual abuse. While the facts of the case may remain uncertain, the power of plea bargaining in the matter is clear.

Well, it’s finally over, and if you didn’t look too closely, you’d think the good guys had won. Today at a pre-trial hearing in Smith County, six of the seven so-called Mineola Swingers Club defendants—accused of unbelievable acts of child sexual abuse—pled guilty to “injury to a child” (a felony) in exchange for their freedom. They’ve all been in jail or prison since 2007, though two had their sentences overturned. The remaining defendant—whose conviction is still intact—will remain in prison.

I’ve rarely seen the wheels of justice grind up so many innocent people — and I’m not just talking about these seven defendants. I’m also talking about the children who became witnesses against them, plus the family members of everyone involved in this sordid mess. As long-time Tyler attorney Bobby Mims, who is also a vice-president of the Texas Criminal Defense Lawyers Association, told me in my first story on the cases, “In my thirty years of practice, I’ve never seen anything like it—an absolute, honest-to-God frame-up.”

I’ve been writing about these cases for more than two years now, in the magazine and online. To recap, from 2005 to 2008, four Tyler children - three siblings and their aunt — all aged 4 through 7, made allegations that in 2004 seven adults, including their parents, had forced them to attend a sex kindergarten in a trailer park, where they learned to play sex games, and then took them to a swingers club in nearby Mineola, where they performed sex acts on stage in front of crowds of as many as 30 adults, who videotaped the shows. The stories told by the kids were wildly inconsistent and sometimes outright bizarre: adults casting spells, wearing witch outfits, and sacrificing chickens; one child said she had flown around on a broomstick. Every single child initially denied to social workers knowing anything about a sex kindergarten or club; it was only after multiple interviews that they started making outrageous allegations. But there was nothing to back them up: no adult witnesses and no physical evidence — no DNA, no fingerprints, not even any videotapes.

In fact, Wood County, where Mineola is located, did its own investigation, back in 2005, when just one child was talking about a sex club. Investigators (including an FBI agent), found absolutely no evidence to back up her accusations. This didn’t stop the criminal justice machinery of Smith County. A Texas Ranger got involved and before long he was helping interview the other kids. In 2007 arrests were made; the public was outraged that a sex kindergarten and a sex club would operate under their noses. Three of the adults went to trial in 2008 and their juries, made of good country people who want nothing more than to protect their children, found them guilty in a matter of minutes. A fourth defendant was found guilty last summer.

I find it unfathomable that so many good people could allow and encourage these prosecutions to go forward. What happened to the lawyerly skepticism of Judge Jack Skeen and DA Bingham and the other men and women in his office?

* Why didn’t they look closer at the kids’ weird, implausible stories?

* Why didn’t they look closer at the foster mother of three of them, a woman named Margie Cantrell who moved to Mineola from California in 2004 and who has a history of manipulating her foster kids? (One of her California kids characterized her to me as “the puppet master” and said, “She brainwashes the kids to believe the stories she makes up.”)

* Why didn’t they give serious credence to the fact that not one of the seven defendants would testify against the others in exchange for a lesser sentence?

If they had done just one of these three, much less all of them, they would have realized the obvious: Nothing happened. There was no crime. There was no sex kindergarten and there were no child-sex shows at a swinger’s club. Ultimately, I can’t help but believe that Bingham knows this. Let’s put it this way: If he really believed these people put on live sex shows with children, would he really be setting them free now?

I always figured the cavalry would ride in and save the day for them. First I thought it would be the office of the Attorney General, which, in the summer of 2009 sent two lawyers to help investigate the case after Bingham tried to recuse his office from further prosecutions. But the AG’s office didn’t do anything. Then in the spring of 2010 two of the defendants had their verdicts thrown out by the 14th Court of Appeals in Houston—a process which saw the DA in neighboring Wood County file an extraordinary amicus brief in which he officially called into question everything the Smith County DA had done. “[N]o evidence was found to corroborate the stories told by the children,” he wrote.

But that was it. No cooler or wiser heads stepped in to actually free these people. In fact, those two defendants whose cases were overturned were going to be folded in with the remaining defendants (two of whom are grandparents of two of the children) into one mass trial in June. It is these six who pled guilty.

Why would they do this if they aren’t guilty? Well, innocent people plead guilty all the time. They confess to crimes they didn’t commit (about a quarter of the DNA exonerations involve some form of false confession) and they plead guilty to crimes they didn’t commit. They especially do it when they are certain they will be found guilty, no matter what they do or how good their attorneys are. In these cases we’ve already seen four different juries vote guilty — in the time it takes to watch a movie. These defendants know the realities. They can go to prison for life — or they can go home. They don’t have a whole lot to lose by pleading guilty. Their lives have already been ruined — they’ll always be known for these allegations anyway...

I usually believe in the ultimate good will of good people; justice will triumph. Of course, that only happens if people actually do something about injustice. In this case decent people turned away from doing anything about a terrible wrong. They’ve got a word for that, and the word is “evil.”

In Smith County, the bad guys won.
Clicker here for the entire story.

Thursday, May 12, 2011

Update Regarding "Donations" in Plea Bargaining Cases

In a follow-up article regarding "donations" in plea bargaining cases, the Bellville News-Democrat is reporting that in March 2011 an individual was required to donate $22,500 to a police drug task force and Sheriff's task force as part of a plea bargain in a drug case. The defendant also received probation. The article went on to describe some of the responses to the revelations in the earlier article regarding the use of such "donations."


Based on the BND's Sunday article, the Illinois State Bar Association issued this statement Monday concerning the practice of plea bargains that include payments to funds controlled by the office of the prosecutor or police in the case:

"It's not our place to comment on the legality or ethics of the practice, but it does raise concerns that the public's perception of our justice system may be undermined," said Charles J. Northrup, general counsel to the bar association. Northrup is a frequent lecturer on matters of legal professional ethics.

Kathy Twine, executive director of the Illinois Judicial Inquiry Board, said that state law prevented her from making any comment. The board's regulations state it can initiate its own investigation of a judge.

James Grogan, deputy administrator and general counsel to the state Attorney Registration and Disciplinary Commission, also said he could not comment except to note that the commission can begin an investigation of an attorney, including a prosecutor, without waiting for a citizen's complaint.
Read the entire article here.

"Donations" in Plea Bargaining Cases Under Fire

The Belleville News-Democrat in Illinois posted an article this week discussing the growing practice of requiring defendants to pay "donations" to anti-crime funds in return for prosecutors dropping or reducing charges. The article has resulted in significant attention being focused on this issue and a statement being issued from the Illinois State Bar Association. The statement reads: "It is not our place to comment on the legality or ethics of the practice, but it does raise concerns that the public's perception of our justice system may be undermined."

The newspaper article includes the following discussion of the "donation" practice.

Defendants accused of rape, homicide, drug dealing and other serious crimes in five rural southern Illinois counties have paid thousands of dollars into "anti-crime" funds that benefit or are controlled by local prosecutors in return for probation or dismissal of charges.
Professors at some of the nation's top law schools say this practice undermines public trust in courts and gives the appearance that defendants with enough money get preferential treatment and can buy their way out of trouble. They say such payments violate a basic ethical principle: Monetary contributions or payments resulting from plea bargains should not in any way benefit or appear to benefit the offices of the prosecutor, the judge or police involved in the prosecution.
"It is clearly unethical and a violation of the Constitution," said legal ethics expert Monroe H. Freedman, a professor at Hofstra University Law School in Hempstead, N.Y. Like other experts contacted for this story, Freedman cautioned he was not commenting about any specific case.
A Belleville News-Democrat investigation found that payments negotiated by prosecutors and approved by judges ranging from $1,000 to $15,000 resulted in probation or dismissal of felonies in 17 cases in Saline, Pulaski, Franklin, Wayne and Hardin counties.
Defendants made much smaller payments to prosecutors' funds in hundreds of other cases in these same courts. A random check of 50 felony cases showed that probation or a conditional discharge was granted in 48 cases. In two cases, the defendant received prison time. The average payment in those 50 cases was $400.
In Saline County, when charges were dismissed by a judge or dropped by the prosecutor, defendants still were required to pay thousands of dollars into one of these funds, even though there was no finding of guilt and the case no longer existed.
"I believe it is wrong for a plea agreement to include contributions to a fund administered by the prosecutor's office or by any agency that is involved in the prosecution," said ethics expert Steven Lubet, a professor at Northwestern University Law School in Chicago.
The 17 cases involving the $1,000 to $15,000 payments included four defendants with criminal records, including one who served time in state prison. Two of the defendants were freed after agreeing to pay, only to be caught again months later for the same crime.

In response to the article, several of the prosecuting offices utilizing this system of donations stated that the practice would end immediately.


Saline County State's Attorney Mike Henshaw, a former circuit judge, ended his office's connection to the "Saline County State's Attorney's Controlled Substance Fund" two weeks ago after the News-Democrat asked questions about it. The fund, established in 2005 by the previous state's attorney, collected $148,309 through February 2011.
After questions from the News-Democrat, Wayne County State's Attorney David Williams said he might abolish the practice as well. However, on Thursday, he said that while he has not had any involvement with his office's fund since he was elected and will continue not to use it, he will not take action to abolish it.
"But that doesn't mean I condemn it," he said.
Henshaw said he doubts state law allows these types of payments to be part of court-ordered plea bargains. "There will be no more pleas taken on this fund," he said.
The loss of revenue, he said, will probably mean he will have to lay off his office's investigator.
Henshaw said while payments to the fund occurred after he took office, they never were an issue until the News-Democrat's inquiry.
"I just never thought about it," he said.
Former Saline County State's Attorney David Nelson, who created the fund in 2005, said he first consulted state law to determine whether the payments could be tied to plea bargains, but he could not recall the specific statute.
"I remember it was vague," Nelson said.
Read the entire article here.

Friday, May 6, 2011

Moriarty on Plea Bargaining and the Defense Dilemma of Competent Representation

Jane Moriarty (Univ. of Akron School of Law) has posted a new article on SSRN entitled "'Waiving' Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation." The abstract is below.


The proposed amendments to the ABA Criminal Justice Standards for Prosecutors and Defense Lawyers ("Proposed Standards") address a number of problematic issues related to the roles of both prosecutors and defense attorneys. This Symposium Article considers waiver of rights in the context of the Standards, focusing on guilty pleas and the so-called "preconditions" that prosecutors generally require before even entertaining the defendant’s proffer, colloquially termed "Queen for a Day" agreements It reviews the development in the law since 1993, the changes in the practice since that time, and the proposed changes to the Standards. The article focuses on the complex obligations of criminal defense attorneys to investigate their cases and give competent advice to their clients in the shadow of proffers and pleas. It concludes that attorneys in this role face an almost insoluble dilemma and hopes that the Proposed Standards provide an important first step to resolving it.

Teens Sentenced in Phoebe Prince Bullying Case

Five teens facing criminal charges for bullying in connection with the 2010 suicide of Phoebe Prince have pleaded guilty and been sentenced to probation and community service. According to the Christian Science Monitor:


Sean Mulveyhill and Kayla Narey were sentenced on Wednesday to a year of probation and 100 hours of community service with at-risk youth, in exchange for admitting criminal harassment. Sharon Velazquez and Ashley Longe received similar sentences Thursday in juvenile court, and Flannery Mullins was sentenced for a civil rights violation, also in juvenile court. The courts also prohibited them from telling their stories for profit during the probation period.


For some of the teens, their records will be cleared if they successfully complete probation. The charges originally filed ranged from statutory rape to violations of Prince’s civil rights.


Prince, a freshman at South Hadley High School who had recently moved from Ireland, dated Mr. Mulveyhill, and after they broke up he and the girls directed threats and insults against her, including slurs against her Irish ethnicity. In the time leading up to her suicide, Prince feared being attacked and frequently visited the school nurse or avoided school.


Prince’s family agreed to the sentences, in which the more-serious charges were dropped, to avoid drawn-out trials, prosecutors said. Another teen, Austin Renaud, has pleaded not guilty to statutory rape and is due in court later this year.


The proceedings “signify that bullying and harassment will not be tolerated in our schools and when it rises to the level of criminal conduct ... those responsible will be prosecuted,” Steven Gagne, Northwestern first assistant district attorney, said in a statement after Wednesday’s sentencings.


Alfred Chamberland, a lawyer for Ms. Mullins, said in a statement that prosecutors had “overcharged” the girls and that the media had unfairly portrayed them as “mean girls and bullies.”


Some educators raise concerns that criminal cases are not the best way to address bullying. While the Prince case “has helped put bullying and cyberbullying on the educational agenda ..., children are very reluctant to report bullying to adults, and the threat of sanctions may make it less likely they will do so,” says Peter Sommer, head of the Cambridge Friends School in Massachusetts. “Interventions really have to be more educational than punitive.”


But others applaud the prosecutors. The comprehensive set of charges was the best approach to prosecuting cyberbullying that she’s ever seen, says Parry Aftab, executive director of WiredSafety, an online safety group.

Monday, April 11, 2011

DC Metro Bomber Pleads Guilty

According to CNN, Farooque Ahmed, the individual accused of plotting to bomb the Washington D.C. Metro, has pleaded guilty in U.S. District Court in Alexandria, Virginia. After apologizing for his actions and telling the court "[i]t was the wrong action," Ahmed was sentenced to 23 years in prison and 50 years of supervised release.

Ahmed had pleaded not guilty last year. In changing his plea, he admitted that he attempted to provide material support to a designated terrorist organization. He also pleaded guilty to collecting information to assist in planning a terrorist attack on a transit facility.


In court documents, Ahmed admitted performing surveillance at Metro stations near the Pentagon, taking videos and making diagrams of possible places to locate bombs. He suggested between 4 and 5 p.m. "would be the best time to stage an attack to cause the highest number of casualties" in several simultaneous explosions, according to a statement of facts signed by Ahmed.


Prosecutors said Ahmed thought he was helping members of al Qaeda, but in reality he was providing information to people working for the U.S. government...


U.S. officials believe that Ahmed was working alone, MacBride said, and that the public was never in danger because his activities were being closely monitored.


Federal public defender Kenneth Troccoli said Ahmed accepted full responsibility for his actions. Troccoli suggested one of the reasons Ahmed might have been drawn into plotting terrorism was that Muslims are constantly hearing messages urging radical action.


"That can unfortunately create resentment and a feeling among believers of Islam that they are not truly Islamic unless they do some of these things," Troccoli said.


Authorities found three weapons at Ahmed's home at the time of his arrest in late October: a Smith & Wesson pistol, a 12-gauge double-barrel shotgun and a Remington rifle, along with ammunition.


Also discovered was a biography of American-born Yemeni cleric Anwar al-Awlaki.