Wednesday, November 12, 2014

Judge Rakoff on "Why Innocent People Plead Guilty"

Judge Jed Rakoff has published a very interesting piece in The New York Review of Books entitled "Why Innocent People Plead Guilty." I would encourage readers of this blog to take a look at this in-depth analysis of how we came to have a system in which 95%-97% of convictions are the result of a plea of guilt.

The opening paragraphs:

The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes.

To the Founding Fathers, the critical element in the system was the jury trial, which served not only as a truth-seeking mechanism and a means of achieving fairness, but also as a shield against tyranny. As Thomas Jefferson famously said, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.
It was not always so.
The entire article is available here.

Friday, October 3, 2014

Plea Agreements and Waivers - Awaiting New Policy Announcement

According to the Wall Street Journal, the DOJ will soon announce a major policy shift regarding plea agreements and certain types of waivers.  According to the paper, Attorney General Holder is preparing to announce that the government will no longer request defendants waiver their right to appeal for ineffective assistance of counsel.  
The waivers are used by about one-third of the 94 U.S. attorneys' offices and have come under increased scrutiny by legal ethics authorities in recent years. While federal prosecutors say the waivers pre-empt frivolous litigation and preserve resources, defense lawyers and federal public defenders argue they create a conflict of interest and insulate attorney conduct from judicial review.

The debate has grown in importance now that nearly all charges in federal and state courts are settled with plea bargains. These agreements represented more than 97% of all federal convictions in 2013, said the Administrative Office of the U.S. Courts.

By signing a waiver—usually a paragraph in a plea agreement—a defendant agrees not to challenge her conviction by filing a claim alleging that an attorney provided ineffective assistance. If the defendant were to try anyway, a court could enforce the waiver without considering the merits of the claim.

In a ruling last month, the Kentucky Supreme Court became the first to pronounce such waivers unethical, saying they put defense lawyers in the awkward position of having "to advise a client on the attorney's own conduct."
Along with the Kentucky pronouncement, bar associations in eleven other states currently hold that such waivers are improper.  The entire Wall Street Journal article is here.

Thursday, September 11, 2014

"A Prisoner of Time" - Winner of the 2014 Hofstra Law School Mystery Short Story Contest

I am pleased to announce that my short story, entitled "A Prisoner of Time," has been selected as the winner of the 2014 Hofstra Law School Mystery Short Story Contest and is now available on the Mulholland Books website.  The competition was judged by Lee Child, New York Times bestselling author of the Jack Reacher series, Marcia Clark, the former OJ Simpson prosecutor and author of the highly-praised Rachel Knight series, and Alafair Burke, best selling author of ten thrillers.

Below are the first few paragraphs of story.
The years passed faithfully, each one much like the last, and yet each distinctive and filled with its own memories.  George Duncan, known simply as Duncan since his first year of school, sat in his large recliner.  Though the chair was old and tattered, the fabric was woven with far too many memories to discard.  Duncan, currently in the eighth decade of his life, had never felt the cold beneath his skin as he did now.  But, somehow, sitting in his chair, gazing through the window, and thinking about the past seemed to warm him as the sun set outside.

Duncan’s mind often wandered over his decades as a feared criminal defense attorney.  On some days he would laugh out loud as images of a floundering witness succumbing to his blazing cross-examination replayed in his mind.  Other days were filled with deep reflection on those few times during his career when mistakes had led to perpetual recollection and regret.  Despite the innumerable and varying memories from which to select, one image drifted uninvited into his mind more than any other during the many days he spent in that timeworn chair, the face of his client Billy Brandon.  As that face flickered in his consciousness once again, Duncan’s hands clenched in anger and anxiety.
“Duncan.  Duncan, dear,” his wife, Martha, called from the kitchen.  “It’s time for dinner.”

“Just a moment,” Duncan responded as he unbound his hands and strained to push himself up from his seat.

Once standing, he paused and gazed out the window for a final second.  Then, turning to face a large bookcase at his side, Duncan reached out and withdrew a massive leather bound edition of a Dostoyevsky classic.  After using both hands to lower the literary masterpiece onto a small library table, Duncan lifted the front cover to reveal the book was actually a safe.  Reaching into the hollow middle, he pushed aside a piece of paper and withdrew a heavy black revolver.  Holding the gun in his hand and spinning the chamber, he took note of the four bullets and two empty shells still lying in the cylinder.

“After these many years,” Duncan said aloud, yet in a whisper, “my representation will finally come to an end.  Until tomorrow, Mr. Billy Brandon.”
Click here to continue reading the rest of "A Prisoner of Time."

The award announcement is available here.


Monday, September 8, 2014

Economist Article on the Criminalization of American Companies

The Economist has an excellent article on the Criminalization of American Companies entitled "A Mammoth Guilt Trip."  Among the many interesting issues the article examines is this regarding the risks of proceeding to trial for corporations:
Chief executives now say it would be simply irresponsible for them to run the risk of an indictment and trial. The result is “regulation through prosecution”, argues James Copland of the Manhattan Institute, a think-tank. The mere threat of an indictment forces a negotiation which can lead to an entire new construction of law.

So how does a legal process without an open trial operate? The kind answer is “mysteriously”; a harsher one might be “coercively”. 
Read the entire article here.

Sunday, August 24, 2014

Interesting WSJ Article Regarding the Rise in Arrest Records

The Wall Street Journal has an interesting article discussing the rise in arrest records in the U.S.  From the opening paragraphs:
America has a rap sheet.

Over the past 20 years, authorities have made more than a quarter of a billion arrests, the Federal Bureau of Investigation estimates.  As a result, the FBI currently has 77.7 million individuals on file in its master criminal database - or nearly one out of every three American adults.
The full article is available here.

Upcoming ABA CJS International White Collar Crime Institute

For the third straight year, the American Bar Association Criminal Justice Section will host a one and a half day conference that will feature topflight legal practitioners from across the globe tackling such topics as corporate espionage and cybercrimes, international money laundering and sanctions, cross-border evidentiary concerns, whistleblowers, deferred prosecution agreements and international internal investigations.  Special focus will be paid to fraud and bribery cases from the perspective of top prosecutors from various countries.

The conference will occur on October 13-14, 2014 in London, UK. 

This year's featured speaker at the Monday luncheon will be Michael J. Garcia.  Mr. Garcia is a partner at Kirkland & Ellis LLP in New York City and serves as the Independent Chair of the Investigatory Chamber of the FIFA Ethics Committee.  Prior to joining Kirkland & Ellis, he served as the Senate-confirmed United States Attorney for the Southern District of New York (SDNY).  Mr. Garcia spent two years as Assistant Secretary for Immigration and Customs Enforcement at the Department of Homeland Security.  From 2001 to 2002, Mr. Garcia served as Assistant Secretary of Commerce for Export Enforcement.  From 1992 to 2001, Mr. Garcia was a federal prosecutor with the SDNY.  He personally prosecuted a number of high-profile terrorism cases, including the 1993 bombing of the World Trade Center and the 1998 bombing of U.S. embassies in East Africa.

As has been the case in the past, this should be an excellent conference.  For those interested in attending, more information is available here.

Saturday, July 26, 2014

Dallas County District Attorney's Office - First-of-its-Kind Exoneration in US

The Dallas County District Attorney's Office has issued a press release regarding a new exoneration. According to the DA's Office, this is a first-of-its-kind exoneration because it results from systematic DNA testing, even though the soon-to-be exoneree was not actively proclaiming his innocence or requesting DNA testing. It is also important to note for readers of this blog that the exoneree pleaded guilty to the charged offense (rape) even though he was in fact innocent.
A 57-year old Dallas man falsely convicted of sexual assault will be exonerated as a result of systematic DNA testing by a district attorney’s office, even though he was not actively proclaiming his innocence or requesting DNA testing. According to the National Registry of Exonerations, this is the first time in the United States an exoneration of this nature has occurred.

Mr. Michael Phillips, an African-American, served 12 years in prison after pleading guilty in 1990 for raping a 16-year-old Caucasian girl at a Dallas motel where both of them lived. Mr. Phillips says his defense attorney told him not to risk going to trial – fearing a jury would not side with a black man accused of raping a white girl who picked Mr. Phillips out of a photo line- up.

However, Dallas County District Attorney Craig Watkins’ ongoing project of reviewing untested rape kits without defendants initiating the request revealed Mr. Phillips was innocent. DA Watkins signed off on this proactive screening project, which tests DNA preserved by the Southwest Institute of Forensic Sciences. The Dallas area crime lab tested sexual assault kits from the year 1990 that met certain criteria, which paved the way for Mr. Phillips’ exoneration.
Click here for the entire press release.

Click here for a copy of "The Innocent Defendant's Dilemma: An Innovative Empirical Study of Plea Bargaining's Innocence Problem."

Wednesday, July 23, 2014

United States v. Harden - New 7th Circuit Case re Magistrate's Role in Accepting Felony Plea of Guilty

An interesting new case from the 7th Circuit.  In United Sates v. Harden (7th Cir. July 14, 2014), the court examined whether a magistrate judge could properly accept a plea of guilty from a defendant charged with a felony.  From the opinion:
Pursuant to a written plea agreement, Defendant-Appellant Stacy Lee Harden pled guilty to possession with the intent to distribute cocaine.  With Harden's consent, the district court instructed a magistrate judge to conduct a Federal Rule of Criminal Procedure 11 plea colloquy under a local rule allowing for magistrate judges to accept felony guilty pleas.  The magistrate judge accepted Harden's guilty plea, and the district court then conducted a sentencing hearing and imposed sentence.  Harden now appeals the magistrate judge's acceptance of his guilty plea, arguing that the magistrate judge's acceptance of a felony guilty plea, instead of preparing a report and recommendation to the district court, was a violation of the Federal Magistrates Act, 28 U.S.C. section 636; Rule 59 of the Federal Rules of Criminal Procedure, and the United States Constitution.
In examining the importance of the guilty plea, the court stated:

“[A] guilty plea is a waiver of important constitutional rights designed to protect the fairness of a trial.” Johnson v. Ohio, 419 U.S. 924, 925 (1974). It is “more than an admission of past conduct: it is the defendant’s consent that judgment of conviction may be entered without a trial—a waiver of his right to trial before a jury or judge.” Brady v. United States, 397 U.S. 742, 748 (1970). In addition to waiving these core rights and protections afforded by our system of criminal justice, defendants often waive their appellate and habeas corpus rights as well. In such cases, accepting a guilty plea is even more final than a guilty verdict. Consequently, when a judge accepts a guilty plea, the judge is required to conduct a long, searching colloquy, as required by Federal Rule of Criminal Procedure 11(b), to ensure that the defendant’s waivers of his important rights are “voluntary ... knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady, 397 U.S. at 748.
The court then went on to rule that just as a magistrate may not conduct a felony trial, even with the consent of the parties, a magistrate may not accept a guilty verdict in a felony case. 

That same limiting principle (that magistrate judges may not conduct felony trials) leads us to our conclusion that the acceptance of a guilty plea in a felony case, a task no less important, is also not authorized by the statute. In accepting Harden’s guilty plea, even with his consent, the magistrate judge violated the Federal Magistrates Act. 
There is very interesting language at the end of the opinion regarding a split in the Circuits regarding this issue. 

We note that our reasoning places us in conflict with several of our sister circuits. There is widespread agreement that a magistrate judge may conduct a Rule 11(b) colloquy for the purpose of making a report and recommendation. See, e.g., United States v. Reyna-Tapia, 328 F.3d 1114, 1119–22 (9th Cir. 2003) (en banc); United States v. Torres, 258 F.3d 791, 796 (8th Cir. 2001); United States v. Dees, 125 F.3d 261, 263, 265 (5th Cir. 1997); United States v. Williams, 23 F.3d 629, 631– 34 (2d Cir. 1994). We agree that this is a permissible practice (and are told that that the district court for the Southern District of Illinois now delegates the conduct of a plea colloquy to a magistrate judge only when a report and recommendation on the plea is sent back to the district judge). Several circuits go further and authorize magistrate judges to accept felony guilty pleas with the parties’ consent. See United States v. Benton, 523 F.3d 424, 431–32 (4th Cir. 2008); United States v. Woodard, 387 F.3d 1329, 1332–33 (11th Cir. 2004); United States v. Ciapponi, 77 F.3d 1247, 1250–52 (10th Cir. 1996). Those courts place great import on the statement in Peretz that “Congress intended to give federal judges significant leeway to experiment with possible improvements in the efficiency of the judicial process....” 501 U.S. at 932.
The case then concludes by noting the importance of plea bargaining today and the need to protect defendant's rights during this stage of the proceedings.  

The desire to make more efficient the district courts’ management of large criminal caseloads is understandable. These days, over 97% of criminal convictions are the result of guilty pleas. See “Statistical Tables for the Federal Judiciary,” Table D-4 (June 2013) (finding that of 84,060 total criminal convictions in a twelve-month period, 81,955 were the result of guilty pleas). Truly, “criminal justice today is for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012). Yet, the prevalence of guilty pleas does not render them less important, or the protections waived through them any less fundamental. A felony guilty plea is equal in importance to a felony trial leading to a verdict of guilty. And without explicit authorization from Congress, the district court cannot delegate this vital task. The authority to experiment set forth in Peretz is bounded; the Court has never suggested that magistrate judges, with the parties’ consent, may perform every duty of an Article III judge, regardless of the duty’s importance.  (some internal citations omitted)
The entire opinion is available here.

Monday, July 14, 2014

Citigroup Agrees to Pay $7 Billion Settlement

Citigroup has agreed to pay $7 billion related to allegations that it packaged bad mortgages during the pre-financial crisis period.  $4 billion of the payment will be penalties for the alleged conduct.  $2.5 billion will be used in mortgage modifications and related relief for homeowners.  The remaining $500 million will be distributed between five states and the Federal Deposit Insurance Corp.

The settlement avoids further civil litigation by the Department of Justice.  According to CNN, Attorney General Eric Holder stated, "Under the terms of this settlement, the bank has admitted to its misdeeds in great detail.  The bank's activities shattered the livelihoods throughout the country."  He went on to state, "They contributed mightily to the financial crisis that devastated our economy in 2008."

The entire CNN article regarding the settlement is available here.

Thursday, July 3, 2014

Regulatory Overcriminalization and Plea Bargaining - Congressional Testimony Update

In November 2013, I testified before the United States House of Representatives' Committee on the Judiciary Over-Criminalization Task Force.

During my testimony, I examined the phenomenon of over-criminalization, particularly in the regulatory area, and offered several recommended solutions for Congressional adoption. First, I recommended the adoption of a default rule for mens rea. Second, I recommended the adoption of a default rule applying mens rea to all material elements of an offense. Third, I recommended the codification of the Rule of Lenity. Finally, along with some additional recommendations for consideration, I discussed the role of plea bargaining in the U.S. criminal justice system and encouraged the Task Force to more closely examine this issue in the future.

My written testimony from that hearing is now available on SSRN for free download by clicking here.

A previous post regarding my testimony is available by clicking here.

Tuesday, July 1, 2014

BNP Paribas Agrees to Nearly $9 Billion Penalty

BNP Paribas, a French bank, has pleaded guilty to criminal charges related to breaching U.S. sanctions. Under the terms of the deal, it is reported that BNP Paribas will pay almost $9 billion in penalties.

From CNN:
The settlement concludes a long-running criminal investigation into allegations that BNP Paribas (BNPQF) violated U.S. money laundering laws by helping clients dodge sanctions on Iran, Sudan and other countries.
 The deal between the bank and prosecutors had been expected for months.    Shares in the bank edged higher Monday in Paris, having fallen more than 12% so far this year in anticipation.
 In an agreement with the Manhattan District Attorney Cyrus Vance, the bank pleaded guilty to falsifying business records and conspiracy in Manhattan Supreme Court.  It is expected to plead guilty for violating money laundering laws in federal court with U.S. Attorney Preet Bharara next week.The bank also agreed to a sanction by the New York department of financial services. It will suspend certain U.S. dollar clearing transaction services through its New York branch for one year.  BNP Paribas said it would clear U.S. dollars "through a third-party bank instead of clearing through BNP Paribas New York."
 About 30 employees will leave BNP Paribas as a result of the investigation, including several who have gone already, according to a U.S. official.
The CNN article discusses the severity of the penalty and states:
The severity of the punishment relates to the bank's lack of cooperation over a period of years, said an official who was briefed on the investigation Monday. The bank continued to process transactions that the U.S. says violated the law even after the investigation began.
The entire CNN article is available here

I have previously written about the important role cooperation plays in decisions by the U.S. Department of Justice regarding the prosecution of corporations. Pursuant to the US Attorney's Manual Principles of Prosecution of Business Organization (found here):  
In conducting an investigation, determining whether to bring charges, and negotiating plea or other agreements, prosecutors should consider the following factors in reaching a decision as to the proper treatment of a corporate target:...4.
the corporation's timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents (see USAM 9-28.700);
For an article discussing this concept further, see the following:

Re-Evaluating Corporate Criminal Liability: The DOJ’s Internal Moral Culpability Standard for Corporate Criminal Liability, 41 Stetson Law Review 7 (2011) (symposium article) - available for free download here

There is also an interesting article in the New York Times about the BNP Paribas case.  The article discusses how a bus bombing two decades ago set in motion a chain of events that led to the prosecution of various banks, including BNP Paribas. From the New York Times article:
The trail that ultimately led to BNP began in 2006, when the Manhattan district attorney’s office came upon a lawsuit filed by the father, who blamed Iran for financing the Gaza bus bombing that killed his 20-year-old daughter. Buried in the court filings, prosecutors found a stunning accusation: a charity that owned a gleaming office tower on Fifth Avenue was actually a “front” for the Iranian government, a claim that the prosecutors later verified.   The prosecutors soon discovered that Credit Suisse and Lloyds, two of the world’s most prestigious banks, had acted as Iran’s portal to the United States financial system. To disguise the illicit transactions — the United States is closed for business to Iran — Credit Suisse and Lloyds stripped out the Iranian clients’ names from wire transfers to the Fifth Avenue charity and affiliated entities. The findings led the Manhattan prosecutors and the Justice Department in Washington to announce criminal cases against both banks.  As those cases were coming to light in 2009, a whistle-blower stepped forward to point the finger at BNP, France’s biggest bank. That tip has now materialized in a landmark criminal settlement, with BNP pleading guilty to criminal charges, capping a sweeping investigation into the bank’s ties to Sudan and Iran.
The entire New York Times article is available here

Sunday, June 29, 2014

White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence

I recently posted my article entitled "White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence," to SSRN for free download. 

Below is the article's full abstract.  A free copy of the article is available for download by clicking here


White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence, 101 Kentucky Law Journal 723 (2013).

Overcriminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of this phenomenon by examining two types of overcriminalization prevalent in white collar criminal law. The first type of over criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly while simultaneously deterring others. The second type of overcriminalization addressed is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available to prosecutors, increase the number of financial criminals prosecuted each year, and deter potential offenders. While these new provisions are not the most egregious examples of the overcriminalization phenomenon, they are important to consider due to their impact on significant statutes. In fact, they typically represent some of the most commonly charged offenses in the federal system.

Through examination of the Sarbanes-Oxley Act of 2002 and examples of these two types of over criminalization within that law, this article seeks to understand whether new crimes and punishments really achieve their intended goals and, if not, what this tells us about and means for the over criminalization debate and the criminal justice system as a whole.

Pleading Innocents: Laboratory Evidence of Plea Bargaining's Innocence Problem

I recently posted my article entitled "Pleading Innocents: Laboratory Evidence of Plea Bargaining's Innocence Problem" to SSRN for free download. 

Below is the article's full abstract.  A free copy of the article is available for download by clicking here.


Vanessa A. Edkins and Lucian E. Dervan, Pleading Innocents:  Laboratory Evidence of Plea Bargaining’s Innocence Problem, 21 Current Research in Social Psychology 14 (2013) (peer reviewed)

We investigated plea bargaining by making students actually guilty or innocent of a cheating offense and varying the sentence that they would face if found ‘guilty’ by a review board. As hypothesized, guilty students were more likely than innocent students to accept a plea deal (i.e., admit guilt and lose credit; akin to accepting a sentence of probation) (Chi-square=8.63, p<.01) but we did not find an effect of sentence severity. Innocent students, though not as likely to plead as guilty students, showed an overall preference (56% across conditions) for accepting a plea deal. Implications and future directions are discussed.

"The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem," 103 Journal of Criminal Law & Criminology 1 (2013): A longer law review article discussing the findings and examining the implications of the results on the constitutionality of plea bargaining is available by clicking here

International White Collar Crime and Deferred Prosecution Agreements

I recently posted my new article entitled "International White Collar Crime and Deferred Prosecution Agreements" on SSRN for free download.  The article examines deferred prosecution agreements in the U.S. and U.K., including close analysis of new rules regarding the use of Deferred Prosecution Agreements in the U.K.  

Deferred prosecution agreements (“DPAs”) are negotiated settlements of criminal investigations entered into between the government and the investigated entity.  Typically, such agreements require an entity to admit wrongdoing, pay a substantial fine, and engage in remedial measures.  If an entity succeeds in satisfying the requirements of a DPA, the government agrees to dismiss any criminal charges that have been filed against the entity related to the matter.  While distinct from traditional plea bargaining because the defendant corporation does not enter a plea of guilty before a court, there is much overlap between these two types of negotiated settlement, including the incentive structure to give up one's right to be proven guilty before a jury. 

Below is the article's full abstract.  A free copy of the article is available for download by clicking here.


International White Collar Crime and Deferred Prosecution Agreements, ABA CJS White Collar Crime Committee Newsletter (Winter 2014). 

In October 2013, the American Bar Association Criminal Justice Section (“ABA CJS”) convened its 2nd annual International White Collar Crime conference in London, United Kingdom. In an auditorium filled almost to capacity, audience members representing practitioners, corporations, enforcement agencies, and academia listened intently to discussions regarding a myriad of topics, including enforcement trends, international internal investigation strategies, and global whistleblower incentives. The large audience and strong interest in the subject of the conference reiterated the growing importance of matters related to international white collar crime in an ever-increasingly globalized business environment.

One of the topics that drew much discussion in London was the impending adoption of deferred prosecution agreements in the United Kingdom. Deferred prosecution agreements (“DPAs”) are negotiated settlements of criminal investigations entered into between the government and the investigated entity. Typically, such agreements require an entity to admit wrongdoing, pay a substantial fine, and engage in remedial measures. If an entity succeeds in satisfying the requirements of a DPA, the government agrees to dismiss any criminal charges that have been filed against the entity related to the matter. 

This article examines deferred prosecution agreements in the United States and the UK. Further, this article considers the draft Code of Practice for DPAs issued by the SFO in 2013 and the insights it offers into various aspects of the impending roll-out of DPAs in the UK.

The Quest for Finality: Five Stories of White Collar Criminal Prosecution

I recently posted my new article entitled "The Quest for Finality: Five Stories of White Collar Criminal Prosecution" on SSRN for free download.  The article examines various negative outgrowths of our quest for finality in the criminal justice system, including our tendency to value finality over accuracy.  In valuing finality over accuracy, plea bargaining stands center stage.  Though this article focuses on the larger issue of "finality," it includes a lengthy discussion of plea bargaining and its role in our criminal justices system and might be of interest to readers of the blog.

Below is the article's full abstract.  A free copy of the article is available for download by clicking here.


Lucian E. Dervan, The Quest for Finality: Five Stories of White Collar Criminal Prosecution, 4 Wake Forest Journal of Law & Policy 91 (2014) (symposium article).

In this symposium article, Professor Dervan examines the issue of finality and sentencing. In considering this issue, he argues that prosecutors, defendants, and society as a whole are drawn to the concept of finality in various ways during criminal adjudications. Further, far from an aspirational summit, he argues that some outgrowths of this quest for finality could be destructive and, in fact, obstructive to some of the larger goals of our criminal justice system, including the pursuit of truth and the protection of the innocent. 

Given the potential abstraction of these issues, Professor Dervan decided to discuss the possible consequences of our quest for finality through examination of specific cases. Therefore, the article examines five stories of white collar criminal prosecution. The five stories are ones in which the players sought to achieve finality in different ways and in which finality came in different forms. Despite their differences, however, the stories do share important commonalities.

First, the stories demonstrate that we must be careful not to value finality over accuracy. As an example, though plea bargaining offers both the prosecution and the defense a mechanism by which to reach sentencing finality, it must not be used to mask unfounded criminal cases or offer overpowering incentives to innocent defendants to falsely confess in return for a promise of leniency. Second, the stories remind us that the government must be careful not to confuse achieving a victorious sentencing finality with achieving a just one. Too often today, the government proceeds after indictment as though winning a sentence at any cost is worth any price. Third, the stories reveal that, in many ways, the quest for true finality in criminal cases is fleeting. While we have long been aware of the lingering collateral consequences present even after a sentence is concluded, we now must also recognize that even those who are acquitted face significant collateral consequences from indictment itself.

Tuesday, February 11, 2014

Upcoming ABA Criminal Justice Section International White Collar Crime Conference

I am pleased to announce that registration is now open for the upcoming ABA Criminal Justice Section conference regarding "White Collar Crime and Regulatory Trends in the European Union and U.S."  The conference will occur in Amsterdam, Netherlands from May 15-16, 2014.  The first day will include a number of panel discussions examining important issues in the field.
This conference will bring together a cadre of international experts to examine the most current, pressing, and difficult issues in the European Union and United States regarding this rapidly changing field.

The panelists, emanating from numerous countries around the world, will address topics including: corporate espionage and cyber-crime; global internal investigations; securities laws and accompanying whistleblower programs; anti-corruption enforcement; money laundering and sanctions violations; and trends in enforcement and compliance.

This conference seeks to offer invaluable insights regarding white collar crime and regulatory trends to those of all levels of experience and those in various roles within and outside of corporations.
The first day will also include a luncheon keynote address by Rob Wainwright, Director of Europol.

On the second day of the conference, there will be an option day-trip to The Hague where participants will have the opportunity to network and tour the International Criminal Court and the International Court of Justice.

I will be moderating a panel regarding "Recent Trends Regarding the Globalization of Enforcement Actions and Cross-Border Internal Investigations in the EU and US."  The panel will include representatives from Allen & Overy LLP in New York, Alvarez & Marsal in Amsterdam, NautaDutilh in Amsterdam, and ZyLAB in Amsterdam.  I look forward to an informative exchange of ideas regarding this complex and critical topic.

The program materials and registration link is available here.

Exonerations Involving Pleas by Innocent Defendants Increasing

I was recently interviewed by the Houston Chronicle regarding the case of Corey Anthony Love.
It's more than likely that Corey Anthony Love has no earthly idea he has been found innocent of the crime to which he pleaded guilty seven years ago and for which he spent 105 days in state jail...

Love was one of 87 listed in the annual report of the National Register of Exonerations, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law. Texas led the nation with 13 exonerations.

His case was hardly the stuff of headlines and outrage. He did not spend decades in prison as an innocent man. He wasn't railroaded by an unscrupulous prosecutor or condemned to a life of hell by mistaken identity or shoddy forensic work.

His was a minor drug offense. He pleaded guilty to the crime. He served relatively little time behind bars.

But to the authors of the report, what makes Love's case, and the other six cases in Harris and Montgomery counties like his, significant is that they represent a growing number of exonerations in cases where no crimes were committed at all and in which the defendants had pleaded guilty.
During the interview, I discussed the prevalence of plea bargaining and the significant innocence issues that can result from the powerful incentives that exist to engage in bargained justice.
What is not known is precisely how many of those plea bargains involve people confessing to crimes they did not commit, said Lucian Dervan, a law professor at Southern Illinois University who has written extensively on plea bargains.

"Plea bargaining dominates the criminal justice system," he said. "In dealing with more minor offenses - offenses for which the individual is likely to receive time served (or probation) if they plead guilty - in those cases the incentive to confess to the crime even if you haven't committed it is extremely high. The reward for saying you had done something is to go home; the punishment for failing to say that is to stay in jail and wait to have an opportunity some point in the future to reveal innocence at trial."

No one except Love, who already had a previous conviction for marijuana possession, can say why he agreed to plead guilty. And there are myriad reasons why someone would confess to something he didn't do.

Inger Hampton, chief of the Harris County district attorney's conviction review section, thinks she has a partial answer.

"People plead guilty for a number of different reasons," she said. "They plead guilty because they are guilty. They plead guilty because they feel guilty about something else. They plead guilty because 'I thought I had cocaine and I don't even know that it's not cocaine.' There are a lot of thought processes that go into that decision."

One that doesn't, however, said Dervan, is any consideration for the "collateral consequences." Most people in custody are intensely focused on getting out of custody; they'll say anything if it means going home.
The entire Houston Chronicle article is available here.

Tuesday, January 14, 2014

Incredible CLE/MCE Opportunity for Summer 2014 - Nuremberg's Legacy: Law, Medicine, & Ethics

I wanted to bring this incredible CLE/MCE opportunity to my readers' attention.  From May 31 through June 7, 2014, SIU School of Law will host a program in Germany entitled "Nuremberg's Legacy: Law, Medicine, & Ethics."

The program description is below.
During this week-long journey, travelers will visit Munich and Nuremberg to learn about the role of law, medicine, and ethics in Germany during and after WWII. Participants will have the opportunity to tour sites of legal and historical significance, including the courthouse in which the Nuremberg Trials occurred and the Dachau Concentration Camp Memorial, and receive lectures from international experts in their fields. Along with a rich educational program, there will be time for independent sightseeing, including a visit to the picturesque Bavarian town of Bamberg, a UNESCO World Heritage Site.
Registration is now open at this link.

More information about the program is available here.

Friday, January 10, 2014

ACLU Publishes Article Regarding the Growing Trend of Debtor's Prison

The ACLU has an interesting article regarding the growing trend in the United States of debtor's prison. 
The American Civil Liberties Union of Colorado accused three Front Range cities this morning of jailing people for failing to pay court-ordered fines that they are too poor to pay. Relying on state and federal court decisions, the ACLU sent letters to the cities demanding a prompt halt to the practice.

The ACLU conducted an in-depth investigation into the municipal courts of Westminster, Wheat Ridge, and Northglenn, which routinely issue "pay or serve" warrants without any consideration for or inquiry into a debtor’s ability to pay.

"Pay-or-serve" warrants authorize a debtor’s arrest. Once in custody, the debtor must either pay the full amount of the fine or "pay down" the fine by serving time in jail at a daily rate set by the court. Wheat Ridge and Northglenn set the rate at $50 per day, while Westminster converts all unpaid fines into ten-day sentences. None of the three cities has a process to determine whether the debtor has the ability to pay, as federal and state law require.

"These 'pay-or-serve' warrants return Colorado to the days of debtors’ prisons, which were abolished long ago," said Mark Silverstein, ACLU legal director. "Jailing poor people for fines they cannot pay violates the Constitution and punishes poor people just for being poor. It also wastes taxpayer resources, crowds the jails, and doesn’t get the fines paid."

The Jefferson County Jail imprisoned at least 154 people on pay-or-serve warrants during a five-month period from February to June of this year. During that time period, 973 days were served at a cost to taxpayers of more than $70 per day, for a total cost of more than $70,000. These 973 fine days cancelled out $40,000 of fines, making the total loss to the taxpayer $110,000.

"Jailing the poor for failure to pay a fine is not only unconstitutional, but also fundamentally unfair," says ACLU of Colorado staff attorney Rebecca T. Wallace. "This practice creates a two-tiered system of justice in which those who can afford to pay their legal debts avoid jail and can move on with their lives, and those unable to pay end up imprisoned."
The entire article is available here.  The April 2013 ACLU of Ohio report entitled "How Ohio's Debtor's Prisons are Ruining Lives and Costing Communities" is available here.

JPMorgan Chase, Bernard "Bernie" Madoff, Sub-Prime Mortgages, and the Prominence of Deferred Prosecution Agreements

The New York Times has an interesting discussion of the process by which JPMorgan Chase decided to accept a deferred prosecution agreement from the government with regard to allegations that the bank ignored warning signs regarding the conduct of infamous Pozi schemer Bernard Madoff.  The DPA, announced this week, will require the bank to pay over $2 billion in penalties. 
Two men who occupy coveted roles in Manhattan’s power elite, one the city’s top federal prosecutor and the other its top banker, sat down in early November to discuss a case that was weighing on them both.

Preet Bharara, the United States attorney in Manhattan, and Jamie Dimon, the chief executive of JPMorgan Chase, gathered in Lower Manhattan as Mr. Bharara’s prosecutors were considering criminal charges against Mr. Dimon’s bank for turning a blind eye to the Ponzi scheme run by Bernard L. Madoff. Mr. Dimon and his lawyers outlined the bank’s defense in the hopes of securing a lesser civil case, according to people briefed on the meeting.

But at the cordial meeting in Mr. Bharara’s windowless conference room lined with law books, the prosecutors would not budge. Mr. Bharara — flanked by his own lieutenants, including Richard B. Zabel and Lorin L. Reisner — made it clear that he thought the wrongdoing was significant enough to warrant a criminal case.

On Tuesday, Mr. Bharara announced the culmination of that case, imposing a $1.7 billion penalty stemming from two felony violations of the Bank Secrecy Act, a federal law that requires banks to alert authorities to suspicious activity. The prosecutors, calling the amount a record for violating that 1970 federal law, will direct the money to Mr. Madoff’s victims.

The outcome of the case and the tenor of the settlement talks underscore the significant leverage prosecutors wield when negotiating with Wall Street’s biggest firms. Even though JPMorgan had defeated a similar private lawsuit just months earlier, bank executives were unwilling to gamble against the government.

Within weeks of meeting Mr. Bharara and recognizing their limited bargaining power, JPMorgan’s lawyers accepted the $1.7 billion penalty, the people briefed on the meeting said, which was within the range that prosecutors initially proposed. The bank also agreed to pay $350 million to the Office of the Comptroller of the Currency, accepting the agency’s only offer, one of the people said.

It could have been worse for the bank. At one point, prosecutors were weighing whether to demand that the bank plead guilty to a criminal charge, a move that senior executives feared could have devastating ripple effects. Rather than extracting a guilty plea, prosecutors struck a so-called deferred-prosecution agreement, suspending an indictment for two years as long as JPMorgan overhauls its controls against money-laundering.
The entire New York Times article is available here.

ABC News also had an article discussing the recent DPA between the government and JPMorgan Chase.  The article asks whether the bank is "Too Big to Jail?" and references the November settlement by JPMorgan of allegations related to the sub-prime mortgage issue thought to have contributed to the financial crisis in 2008.
In another major victory for JPMorgan Chase and its CEO Jamie Dimon, prosecutors said today the bank will be able to avoid criminal charges under a deferred prosecution agreement despite having "turned a blind eye" to evidence of the Ponzi scheme of Bernie Madoff, whose principal accounts were held by the bank for 22 years and were central to his multi-billion dollar fraud.

Instead, prosecutors announced today that the bank will pay $1.7 billion to defer for two years criminal charges that the bank failed to report suspicious activity that might have tipped off investigators to Madoff's scheme years earlier, $350 million to cover civil money penalties for violations of the Bank Secrecy Act and another $543 million to settle civil suits filed by victims of the Ponzi scheme.

It was the second time in three months that the Obama administration Department of Justice declined to push JPMorgan Chase, the country's largest bank by assets, to trial on criminal charges. In November, the DOJ accepted a payment of $13 billion from the bank to avoid criminal charges growing out of the sub-prime mortgage scandal that helped drive the American economy into a recession.
The entire ABC News article is available here.
Given the prominence of deferred prosecution agreements today, it should not be surprising that the Bernard Madoff allegations resulted in such a settlement.  Below is a short excerpt from my upcoming article regarding Deferred Prosecution Agreements.  The article will be published in the American Bar Association Criminal Justice Section White Collar Crime Committee Newsletter. 
In the United States, DPAs have evolved over the last two decades into the dominant method of adjudicating corporate criminal investigations by the Department of Justice (“DOJ”). This is particularly true in the years since the collapse of Arthur Andersen in 2002. Andersen, which was under investigation for the alleged obstruction of justice by a handful of employees during the government’s investigation of Enron, did not enter into a deferred prosecution agreement. Instead, choosing to challenge the government’s case, Andersen proceeded to trial and lost. Though the accounting firm eventually won the case on appeal to the United States Supreme Court, the damage was done and the accounting firm wound up operations after almost a century in business. The collapse led to almost 85,000 employees around the world losing their jobs.

After Andersen, the DOJ’s power to convince corporations that the risks of proceeding to trial and challenging the government’s case are simply too onerous became exponentially greater. Today, it is an anomaly to see a corporate entity challenge the government at trial. While DPAs have traditionally been viewed as an American instrument of adjudication, it appears that the success of the DOJ in utilizing DPAs to secure significant fines and concessions from corporations has not gone unnoticed abroad.
The newsletter article, which goes on to examine the introduction of DPAs in the United Kingdom this year, will be available here later this spring.