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.)
Judicial misconduct comes from all across the ideological spectrum. Judge Richard Cebull of Montana, who reportedly spewed out racist emails like an ATM dispensing twenties, was an anti-Obama conservative. Meanwhile, Judge Boyce F. Martin Jr., whose ethical troubles we alluded to yesterday, was a prominent progressive on the Sixth Circuit.
Judge Martin was appointed to the court in 1979 by President Jimmy Carter and wrote major opinions attacking the death penalty and defending affirmative action. He also penned fun opinions that included references to The Simpsons and Austin Powers.
Alas, this liberal lion has roared his last. Did an investigation into possible judicial misconduct help drive Judge Martin from the bench?
* People have “greatly underestimated how powerful a jurist Justice Sotomayor would be,” and now that one of her concurrences flies directly in the face of Obama’s NSA tactics, we’ll get to see how powerful she really is. [MSNBC]
* Here’s a fun end-of-the-year roundup: President Obama’s Top 10 Constitutional Violations of 2013. Fifty internet points shall be awarded to the first person who correctly guesses how many are related to Obamacare without looking. [Forbes]
* Following Judge Shira Scheindlin’s stop-and-frisk spanking, the Southern District of New York changed its rules on case assignments in order to increase transparency. Related-case judge-shopping just got a whole lot harder. [New York Times]
* Wiley Rein is defending its fee request in the Voting Rights Act case, and says the Department of Justice is “[tying] itself in knots” trying to find a way to get out of paying the piper. Harsh. [Blog of Legal Times]
* “I am not trying to bring down the NSA, I am working to improve the NSA.” Now that he’s unleashed all of America’s deep dark secrets, Edward Snowden just wants to Google like a regular guy. [Washington Post]
* Hughes Hubbard & Reed is doing its part to help fulfill wishes made in children’s letters to Santa at a time when the Post Office’s Operation Santa program is in desperate need. So to all you other Biglaw firms, the ball’s in your court. [USA Today]
* Judge Timothy Black cited Justice Scalia’s dissent to reject Ohio’s gay marriage ban. I’m sure this is a cite that warms the justice’s heart. [Associated Press]
* Professor Pam Karlan is off to become Deputy Assistant Attorney General for Voting Rights. Here’s the last article of the preeminent voting rights expert in her old role as a commentator at the Boston Review describing strange SCOTUS bedfellows. Good luck in the new job! [Boston Review]
* Good news for Florida lawyers! The Florida Bar has revoked its opinion banning LinkedIn endorsements and recommendations. Go back to patting each other on the digital back. [IT-Lex]
* We shouldn’t have been so surprised by the affluenza defense because North Texas is basically one big monument to the concept. [New York Times]
* Here’s an infographic showing the most popular TV show set in each state. What legal shows make the list? [Business Insider]
* The top 10 most ridiculous lawsuits of the year. Apple porn guy clocks in at a mere number 10? Outrage! Bigger outrage: they ultimately link to the HuffPo write-up of… the original Above the Law piece. Why no direct link, hm? Video embedded after the jump… [Faces of Lawsuit Abuse]
Whether you’re someone with a political axe to grind against a Department of Justice run under a Democratic President, a libertarian who simply doesn’t like the government doing much of anything, or someone in the trenches of the criminal justice system who wants to see the guts of the Department of Justice on display, there’s something for everyone to like in the IG’s memo.
And, of course, the IG’s memo is, institutionally, a bit odd. One would think that Eric Holder, the Attorney General, would be the guy issuing memos about the top issues facing the Department of Justice. But, happily, we have the IG — pulling up the dark parts of the Department and bringing them to the public eye.
So here, just so you don’t have to read it, are the most interesting parts of the Inspector General’s memo for folks in the white-collar world.
Remember the 80s? Big hair, Dynasty, Huey Lewis was popular for some reason. Well, Judge Jed Rakoff remembers the 80s, and he also remembers the way the federal government used to actually investigate and prosecute people who committed massive financial crimes — Mike Milken, Ivan Boesky, Charles Keating, a bevy of other savings and loans kingpins. Good times.
And Judge Rakoff wants to know what happened to prosecuting financial crimes, specifically the sort of fraud that crippled the economy. So he took to the pages of the New York Review of Books to ponder all the financial prosecutions that could have been. And he has some theories about what happened and how prosecutors could do a better job in the future.
It’s a fascinating look at a bunch of ideas that the government is going to totally ignore…
Don’t say we never bring you happy news here at Above the Law. Yesterday, for example, we extended congratulations to the 2014 Skadden Fellows, 28 graduating law students and judicial clerks who just landed prestigious public interest fellowships.
Today we are pleased to present to you the 2014 Bristow Fellows. As we’re previously explained, the holders of these one-year fellowships in the U.S. Solicitor General’s Office get to work on cases pending before the Supreme Court, some of the most fascinating and important matters in all the land.
Bristow Fellowships, awarded to recent law school graduates with outstanding academic records and top clerkships, are generally regarded as second only to Supreme Court clerkships in prestige (and often lead to SCOTUS clerkships as well). You can read more about the Bristow Fellowship, including the job responsibilities and application process, on the Justice Department website.
Who are the newest Bristow Fellows? Where did they graduate from law school, and for whom did they clerk? Inquiring minds want to know….
* Despite his hatred of 3L classes like “Law and Unicorns,” Justice Scalia believes that the third year of law school is necessary — perhaps a necessary evil, but still necessary. [Memphis Daily News]
* “[T]his excuse — sometimes labeled the ‘too big to jail’ excuse — is disturbing, frankly….” The eminently quotable Judge Rakoff is at it again, this time with harsh words for the DOJ. [New York Times]
* According to the latest survey from Citi Private Bank’s Law Firm Group, managing partners think that 2014 will be better than 2013. This means bonuses will be the same next year. [Am Law Daily]
* Attorneys from Wiley Rein are fighting for $2 million in fees in the wake of their SCOTUS win in the Shelby County Voting Rights Act case. The firm’s quest has been called “absurd.” [National Law Journal]
* “The record is utterly devoid of any evidence of criminal intent or intentional misconduct.” It turns out the attorneys accused of malpractice by the Miccosukee Indians weren’t bad after all. [Daily Business Review]
* Rather than pegging its value at $1 million, a professor from a fourth-tier law school is promoting the “non-economic value” of a law degree. Can “cultural capital” repay your loans? [WSJ Law Blog (sub. req.)]
* “[N]o law school in Canada should be allowed to weed out gay students.” Too bad. Trinity Western University, the law school that bans gay “sexual intimacy,” received preliminary approval. [Globe and Mail]
Leave aside that the article hits the tired drum that more people should have gone to prison after the financial crisis – because, of course, the only thing that causes an economic downturn is crime.
Instead, check out how SIGTARP shows us that they’re doing good work as a law enforcement agency.
[Special Inspector General Christy] Romero noted that the average prison sentence imposed by courts for crimes investigated by SIGTARP is five years and nine months — nearly twice the national average for white-collar fraud.
Right – SIGTARP is a serious player because it’s getting serious prison time…
Ed. note:Matt Kaiser founded The Kaiser Law Firm PLLC, a white-collar boutique in Washington, D.C., and will now be writing a weekly column for us about white-collar practice and his adventures in building a law firm. Matt previously covered the Supreme Court for us. This is the second installment of his new column.
Suppose you’re a fourth-year associate in a litigation department in a large firm on one of the coasts. You’ve worked on a lot of different matters — you’ve done document review for commercial litigation. You put together a privilege log for some patent litigation (who says patent litigation is specialized?). You waded through documents in an FCPA case. You even got to do some deposition digesting for a reinsurance lawsuit!
You really liked your work on the FCPA document review. You noticed that the documents related to a foreign country, which sounded exotic. You could sit in your office, staring at the brick wall on the other side of the alley, and imagine that you were an extra in Casablanca, with a view toward how the world really works overseas.
Perhaps most importantly, you loved how your friends from law school reacted when you told them you were working on an FCPA matter. Cocktail parties became more interesting when people thought of you as a white-collar criminal defense lawyer, rather than the reinsurance guy. You resolved that you’d do more white-collar work and perhaps make this noble practice area the focus of your career.
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The Trust Women conference is an influential gathering that brings together global corporations, lawyers and pioneers in the field of women’s rights. Unlike many other events, Trust Women delegates take action and forge tangible commitments to empower women to know and defend their rights.
This year, the Trust Women conference will take place 18-19 November in London. From women’s economic empowerment to slavery in the supply chain and child labour, this year’s agenda is strong and powerful. Speakers include Professor Muhammad Yunus, Nobel Laureate and founder of the Grameen Bank; Phumzile Mlambo-Ngcuka, Executive Director of UN Women; Mary Ellen Iskenderian, President and CEO of Women’s World Banking and many other influential leaders. Find out more about Trust Women here.