White-Collar Crime

The Waiting Is The Hardest Part -- Part I

When a prosecutor looks through a dirty window, everything he sees is dirty.

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Time down the drainImagine the following scenario (with apologies to Jay McInerney):

An FBI agent knocks on your door and, when you answer, asks to interview you. (Note: this will almost always happen either when you’re getting your kids out the door in the morning or having dinner with them at night. Because the FBI knows that will make you even more nervous and distracted, which is kind of what it’s going for.)

You ask the agent what it’s about. He tells you that he just has a few questions, and this really shouldn’t take much of your time. (Move along, voice-in-the-back-of-your-head that’s screaming “DON’T TALK DON’T TALK OH MAN SHOULD I GET A LAWYER???” Nothing to see here.)

So, not wanting to be rude or look suspicious, you invite the agent in. He stays for longer than you expected, and it turns out — huh! — that he has more than just a few questions for you. In fact, some of the things he’s asking make it sound like he thinks you did something. But you didn’t do anything! Sure, you know about the bad thing someone else did at your company, but you weren’t involved in that! Does he think you’re involved in that?

After a while, the agent gets up, thanks you for taking the time to talk with him, and leaves your house. Before he does, he gives you his business card and tells you that he may have a few more questions down the road. You say OK, and he leaves.

The next day, you realize that you’re probably going to need a lawyer.

So you hire a lawyer. The lawyer meets with you, and you tell her everything that you know — about what the company did, about why you’re not involved, and about why despite not being involved, you can absolutely see how the government might think that based on some emails you sent.

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The lawyer says that you may have a problem, but she’s cautiously optimistic that she will be able to convince the government that what it sees as a smoking gun isn’t actually that at all. Or, to paraphrase Edward Bennett Williams, that when a prosecutor looks through a dirty window, everything he sees is dirty.

So she meets with the prosecutor. He tells her, in no uncertain terms, that he believes you’re guilty and that he can prove it. He even shows her some documents that he thinks prove that.

Because some prosecutors like defendants who do their jobs for them — and some defense attorneys are too easily cowed — he even tells your lawyer that he would love for you to come in, sit down with him, and explain yourself. Why, he’ll even give you a Queen for the Day letter, so that he can’t use anything you say against you (at least directly)!

And finally, he tells her, if you don’t come in, he’ll just have to indict you. He sounds almost mournful when he says this.

Your lawyer comes back and tells you what the prosecutor said. The funny thing is, she still believes that you’re innocent — even after hearing what the prosecutor said. She said that she thinks you have a strong defense, but she’s also realistic — the government wins a lot more than it loses, and if you come in, you’ll get a much more generous plea offer than you will if they have to indict you.

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She tells you to think about it.

So you think about it. And think about it and think about it. In the end, you tell your lawyer that you just don’t trust the government and that you don’t think going in to talk to them would help you at all. She says that’s fine and that she agrees with you. She calls the prosecutor and tells him you won’t be coming in.

The government thanks her and, again almost mournfully, says that it will “just have to move ahead with the case.”

What often happens next is something that will probably surprise you. More on that next week.

Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.

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