Criminal defense lawyers who practice in federal court bemoan the lack of jury trials these days.
According to the administrative office of the U.S. courts, in the twelve months ended March 31, 2013, in our federal courts, 83,614 people entered a plea of guilty. Only 1,953 went to a jury trial (there were 173 bench trials too, for what it’s worth).
So, around 2 percent of the folks who are charged in federal court go to trial — the rest plead guilty.
The numbers in white-collar cases are a little better. For fraud cases there were 9,925 guilty pleas and 411 jury trials — so about 4 percent of people accused of fraud opt to see a jury. For regulatory offenses there were 1,480 pleas and 47 jury trials — about 3 percent.
There are a lot of reasons why so many people plead guilty and so few go to trial. One reason is that the acquittal rate is low — about 13 percent overall (there were 260 acquittals overall in FY 2013). For what it’s worth, while fraud acquittals were in line with that, regulatory offenses had an acquittal rate that was much higher — 20 acquittals (counting bench and jury trials) out of 55 trials. That’s about 35 percent.
Another big reason is that people accused of a crime are meaningfully prevented from testifying — and if a trial turns on what a person knew, as many white-collar cases do, their ability to put on a defense is compromised by their inability to testify. They can see a bad verdict coming….
A famous criminal defense lawyer was asked about how to hire a lawyer for a criminal defense case. Imagine, he was asked, that a relative was charged with a serious crime in a place where he didn’t know anyone. How would he go about finding a lawyer for his friend?
The answer — hire the best lawyer in the next town over.
A good criminal defense attorney will have relationships with the local prosecutors. She’ll know the local judges. And when you hire a criminal defense attorney, you assume that one thing you’re getting is a favorable presentation to those prosecutors and judges. The trouble is, that lawyer may have more of an interest in her professional standing in the community than in your case.
If you’re really in trouble — life is on the line kind of trouble — that criminal defense lawyer’s advice was to hire someone who knows what they’re doing and is willing to ruffle feathers on your behalf. Everyone is a little beholden to their own community. Find someone from another community.
There’s a nice example of that principle in action in a complex white-collar case in the Wall Street Journal this week.
Raven 23 was a team of Blackwater employees who provided security in Iraq for U.S. government personnel. On September 16, 2007, a car bomb went off, and Raven 23 was called on to secure an evacuation of a diplomat. As a federal court described it later, “a shooting incident erupted, during which [some of the members of Raven 23] allegedly shot and killed fourteen [Iraqi civilians] and wounded twenty others.”
After September 16, the firefight moved to federal district court in the District of Columbia when the U.S. Attorneys Office for the District of Columbia brought charges against some of the members of Raven 23.
And, as legal battles go, what a firefight it is.
There’s been a Kastigar hearing, a direct appeal, a mandamus action, a judicial call for an Inspector General investigation into the State Department’s conduct in the case, a promised request for the government to pay attorneys’ fees for one of the members of Raven 23, posturing about new charges, and threats of motions for vindictive prosecution.
If you find yourself with some time, reading the papers in the case – the case number is 08-360 on D.D.C.’s docket – isn’t a bad way to spend it.
If you find yourself without that kind of time, here’s a blow by blow of some of the most interesting bits.
a New Jersey judge turned comedian, noted, “It really is an honor to be standing next to what could be the next President of the—.” He shuffled some papers on the lectern. “I’m sorry, these are the wrong notes. I’m doing a roast next week with Jeb Bush.”
More damning, though, and more relevant to this column, is Jeff Smith’s piece over at Politico – “Chris Christie is Toast.” (incidentally, Joy Behar makes the same bread-based observation about Christie in Lizza’s piece).
Recently, Lat suggested that it wouldn’t have been worth it for Zachary Warren to hire a lawyer early in the Dewey investigation. As Lat frames the question, “How much could a lawyer have helped?”
Now that we know a little more about the case — especially the identities of the Secret Seven — let’s think about whether Warren could have benefited from hiring counsel early. And, more generally, what benefit anyone gets who is in a white-collar investigation from hiring a lawyer early.
We know that Warren was concerned about money (as most folks are). The reasonable question is what Warren would get with the money he’d spend on a lawyer.
Of course, there are no certainties — hiring a lawyer in a white-collar case, like in most litigation matters, is a little like buying a lottery ticket. How much does your spend on counsel change the odds in your favor?
So, what are the odds that a good lawyer could have made a difference?
Here’s a sentence from a recent Seventh Circuit opinion:
[T]his case shows every sign of being an overzealous prosecution for a technical violation of a criminal regulatory statute — the kind of rigid and severe exercise of law-enforcement discretion that would make Inspector Javert proud.
This was a sentence from the dissent.
Amazingly, though, the majority voted to reverse the conviction. Judge Sykes, who authored the dissent, would have affirmed the conviction — though, presumably, not because she thinks a Javert-like prosecution is a model that the Department of Justice ought to aspire to.
The indictment of Zachary Warren is troubling for a lot of lawyers because, well, he seems like one of us. His post-Dewey path to a great law school, two cool clerkships, and an offer from a great law firm, is something we, as lawyers, can identify with.
What’s most frustrating about Zachary Warren’s situation is that it looks like he was charged largely because he decided to talk to law enforcement without hiring a lawyer first.
Most of us would like to think that, as lawyers, we’re smart enough to make the right legal moves if we’re in a place where we need to. Yet Warren talked to law enforcement, when most of us know that’s the wrong move (and, if you don’t know that’s the wrong move, there’s a short video on my firm’s webpage explaining how we look at it). What’s up with that?
As Lat mentioned earlier this week, there’s a dispute about what happened. Some of Warren’s friends say he was essentially duped about his status or the nature of the interview he participated in. The Manhattan D.A. has pushed back, through spokeswoman Erin Duggan Kramer: “The facts [in this New York Times piece] are incorrect. The claim that an attorney with a federal clerkship could have any misunderstanding of what it means to speak with and agree to meet with the D.A.’s office is preposterous.”
Kramer’s point makes seems intuitively compelling. Why would a smart lawyer talk?
For starters, there are the emails laid out by the SEC in its complaint, such as:
“I don’t see how we’ll get past the auditors another year.”
“I assume you [k]new this but just in case. Can you find another clueless auditor for next year?”
“I don’t know anything about [the contracts] and I don’t want to cook the books anymore. We need to stop doing that.”
“I don’t know. He’s starting to wig a little. Maybe he’s hearing and seeing too much . . . .”
Sadly for people and happily for prosecutors, regrettable emails are simply a fact of modern electronic life. Still, “I don’t want to cook the books anymore” has to be pretty high on the list of things that one is likely to regret putting in an email.
I pity lawyers licensed in Virginia, or at other states that require CLE credit. When they go to a conference, they have to actually go to the conference.
For the rest of us, a conference – especially the ABA’s white-collar criminal defense conference – drops much of the pretense of being an educational experience. It’s an odd thing. One would think that the point of going to a conference would be to learn about the law. Yet, sometimes that’s not the move.
I spent some wonderful years in my 20s living in New Orleans. During Mardi Gras, social obligation would require that I attend certain parties before and then after a parade, but they often started really early in the morning and ended very late at night. The entire week before Fat Tuesday became something of a Bataan Death March of merriment, which, when you’re in the middle of it, is not quite so merry after all.
The biggest business issue confronting the white-collar criminal practitioner is getting paid. It’s trickier in the white-collar world than in other practice areas for a few reasons.
First, normally you’re representing an individual. People normally have less money than companies.
Second, many people who commit crimes to get money do it because they don’t have money to begin with. That includes money to pay you.
Third, if a potential client made money through whatever conduct landed them in a criminal case, the Supreme Court just held that now it’s easier for the government to take that money away from them so they can’t pay you.
As the Chief Justice summarized what the Court did, in dissent,
We have held… that the Government may effectively remove a defendant’s primary weapon of defense — the attorney he selects and trusts — by freezing assets he needs to pay his lawyer. That ruling is not at issue. But today the Court goes further, holding that a defendant may be hobbled in this way without an opportunity to challenge the Government’s decision to freeze those needed assets.
If you are considering a virtual law practice, you know that many of today’s solo firms started that way. But why are established, multi-attorney law firms going virtual?
Many small firms are successfully moving part—or even all—of their practice to a virtual setting. This even includes multi-jurisdictional practice spanning several states and practice areas, although solo and small partnerships are still the largest adopters of virtual law.
Can you do the same? The new article Mobile in Practice, Virtual by Design from author Jared Correia, Esq., explores how mobile technology bring real-life benefits to a small law firm. Read this new article—the next in Thomson Reuters’ Independent Thinking series for small firms—to explore how a mobile practice:
Reduces malpractice risk
Enables you to gather the best attorneys to fit the firm, regardless of each person’s geographic location
Leverages mobile devices and cloud technology to enable on-the-spot client and prospect communication
Transitioning in-house is something many (if not most) firm lawyers find themselves considering at some point. For many, it’s the first step in their career that isn’t simply a function of picking the best option available based on a ranking system.
Unknown territory feels high-risk, and can have the effect of steering many of us towards the well-greased channels into large, established companies.
For those who may be open to something more entrepreneurial, there is far less information available. No recruiter is calling every week with offers and details.
In sponsorship with Betterment, ATL and David Lat will moderate a panel about life in-house and we’ll hear from GCs at Birchbox, Gawker Media, Squarespace, Bonobos, and Betterment. Drinks, snacks, networking, and a great time guaranteed. Invite your colleagues, but RSVP fast, as space is limited.
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past seven years. You can reach them by email: firstname.lastname@example.org.
It’s that time of year again when JDs are starting to apply for 2L summer jobs and 2L summers are deciding which practice area to focus on.
For those JDs with an interest in potentially lateraling to or transferring to Asia in the future, please feel free to reach out to Kinney for advice on firm choices, interviewing and practice choices, relating to future marketability in Asia, or for a general discussion on your particular Asia markets of interest. This is of course a free of cost service for those who some years in the future may be our future industry contacts or perhaps even clients.
For some years now Kinney’s Asia head, Evan Jowers, has been formally advising Harvard Law students with such questions, as the Asia expert in Harvard Law’s “Ask The Experts Market Program” each summer and fall, with podcasts and scheduled phone calls. This has been an enjoyable and productive experience for all involved.