Department of Justice, White-Collar Crime

Unsealing The Trial Penalty?

It’s a lamentable fact that very few white-collar cases in federal court go to trial. Most plead. Many of those that plead also involve someone providing evidence to the government against someone else; the people involved cooperate (or flip, or snitch, depending on who is talking about what happened).

White-collar cases, at least after an indictment, are often litigated with an eye toward the sentence that will come out at the end. And, with significant sentences in white-collar cases, that makes sense.

Most people plead rather than go to trial because a plea generally locks in some certainty about what will happen at sentencing. (True, in a world where the sentencing guidelines are discretionary, a judge may have a lot of power to decide a sentence that defeats a party’s expectations, but, generally, either by creative use of a statutory maximum — the government agreeing to make certain recommendations — or the simple fact that pleading guilty is a recognition that you aren’t going to spend a lot of the judge’s time sitting in trial, a plea can give a reason to think that the sentence at the end of the case will be lower. Though, of course, there’s always a Madoff exception.)

The flip side, of course, is that there’s a penalty for folks who decide that they would like to go to trial. Indeed, a recent report said that it’s a huge problem in drug cases.

And, on the trial penalty, there is some very interesting litigation in the federal courthouse in DC right now.

The extent of whatever penalty there is for going to trial isn’t clear. In plea negotiations, often a defense lawyer will be treated to a series of threats from the prosecutor about what the prosecutor will do, argue, or investigate if there isn’t a plea. Some of this may be bluster. Some of it may be completely supportable. Often, much of it doesn’t come with evidence that proves the prosecutor can make good on the statements — it’s just threatened.

But in the case of Kevin Ring — a lobbyist who went to trial and was sentenced to 20 months in prison — his defense lawyers are now trying to let the public see exactly what Ring was threatened with if he went to trial.

Ring was treated to a “reverse proffer.” It’s a relatively common meeting where the federal prosecutors sit down with a person accused of a crime and that person’s counsel and they make their best pitch for why the person should plead guilty.

During Ring’s reverse proffer, he was given a PowerPoint presentation. It was given subject to a protective order, and he’s now trying to undo the protective order and distribute it to “public interest groups, legal academics, and others in order to educate the public about how pleas and charging decisions can work and how prosecutors’ actions can affect the criminal justice process.”

It isn’t exactly clear what the document shows, but it does look like it discusses others in the Abramoff investigation and what happened to them.

The Department of Justice is not excited about having their inner workings shown to “public interest groups, legal academics, and others.” They apparently would not like to “educate the public about how pleas and charging decisions can work and how prosecutors’ actions can affect the criminal justice process.” They have filed an opposition to Ring’s request.

Much of DOJ’s opposition is dull — though about what you’d expect from sophisticated counsel. They argue Ring doesn’t have standing to make the request. They discuss whether there’s a right to public access in a situation like this.

More substantively though, DOJ objects to unsealing this document because it would be unfair to the government.

It argues that it would be unfair because this was a lengthy negotiation, and revealing this one PowerPoint wouldn’t be representative.

I can see why DOJ may not want more information about the trial penalty and plea negotiations to be public — no one likes scrutiny. But, when they’re putting people in prison in our name, isn’t a little scrutiny that they’re doing it in a fair way kind of a reasonable thing to ask for?

Earlier: Prosecutors Gone Wild: The Case of Kevin Ring
The Kevin Ring Case Is a Scandal and a Disgrace: Five Things I Think You Should Know

Matt Kaiser is a partner at The Kaiser Law Firm PLLC, a boutique litigation firm in Washington DC, which handles government investigations, white-collar criminal cases, federal criminal appeals, and complex civil litigation. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.

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