The Plea Bargaining Blog

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 se...

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.

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 s...

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 mi...

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 . 

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, Stephani...

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 m...

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 c...

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...

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, thi...

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 ...

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 ...

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 prosecuto...

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 bla...

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 betwee...

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 ca...

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...

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 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...

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 ...

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 ...

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 o...

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...

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...

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 b...

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....