As Lincoln said, “Nearly all men can stand adversity, but if you want to test a man’s character, give him power.”
It’s a familiar enough idea. You see it in both Macbeth and the genesis story of just about every Marvel supervillan. It’s true, I think, not just of people but also of institutions. Like governments.
Just about every time I go to federal court for a sentencing hearing — where it seems the AUSA is fighting for each additional month in prison like it will take a point off his mortgage — I think about this quote from Nietzsche:
Back in March, we wrote the following about Zachary Warren, the young lawyer hit with criminal charges arising out of his post-college, pre-law-school employment at Dewey & LeBoeuf: “we’ve heard rumors that in the coming weeks the DA’s office will show more of its hand — in ways that could materially affect our perception of Zach Warren. We reserve the right to change our opinion of him after additional facts emerge.”
Now some additional facts (or at least allegations) have emerged. As we noted in Morning Docket, the Manhattan District Attorney’s office just laid more of its cards on the table, in opposing Warren’s motion to have his trial severed from that of his more notorious co-defendants.
We have a copy of the government’s opposition. What revelations does it contain?
I’m a white-collar criminal defense lawyer. I love it. There are times when I think that I’ve won the work lottery. Yet, in this column, I’m going to complain about it.
Normally, I think that being a white-collar defense lawyer means that I represent folks who are under investigation by the Department of Justice, a law enforcement agency that would refer a case to the Department of Justice, or a regulator like the SEC, CFTC, or Office of Inspector General (in some situations — OIG’s both handle debarment and developing a case for DOJ).
But sometimes I’ll do other kinds of work too. Recently, I’ve represented clients in civil litigation. I’ve represented clients in arbitrations. And I’ve negotiated resolutions of disputes where litigation is looming but not yet happening. I’ve gotten really good results for clients in these kinds of cases (and, like any lawyer, I’ve had some cases break bad too). I like to think that if a case comes in that presents a relatively sophisticated litigation problem that doesn’t require a specialist (think of an ERISA case) I would consider doing it. And there are other lawyers in my firm who, to be sure, do primarily civil work.
But, despite that, I identify myself as a white-collar defense lawyer.
Sometimes, even though a potential client is exactly the kind of person I want to represent, presenting myself or being known as a white-collar defense lawyer is a problem.
Another reason is that lots of folks cooperate with the government. When many people realize that there’s going to be someone going to prison (see, e.g., the statistics on plea rates), they reason that they’d rather someone else go to prison instead of them.
Snitches are tricky. Often you don’t know what they’ve said before to the government until late in the game. Their statements are Jencks — so a defense lawyer is supposed to get them, but often federal judges only require that they’re turned over very close to trial.
Last month, I wrote about the Department of Justice’s case against Nicholas Slatten, a Blackwater employee who was being prosecuted — along with other members of Blackwater’s Raven 23 team — for a shooting incident in Iraq.
As one FBI Agent is reported to have described it, the shooting was “[t]he My Lai massacre of Iraq.”
That’s a really good sound bite. Nice work FBI!
DOJ brought charges based on the shooting against Slatten, which were dismissed by the court because, basically, DOJ failed to notice that the statute of limitations was running against Slatten after a dismissal of his case.
the government suffered another self-inflicted setback in April when a federal appeals court ruled that the prosecution had missed a deadline and allowed the statute of limitations to expire against a second contractor, Nicholas A. Slatten, a former Army sniper from Tennessee who investigators believe fired the first shots in Nisour Square. A judge then dismissed the case against Mr. Slatten.
Dinesh D’Souza pleaded guilty to a charge related to illegal campaign contributions in Manhattan federal court on Tuesday. D’Souza, a conservative commentator, Reagan White House policy adviser, and Christian apologist, is widely known for his documentary film 2016: Obama’s America. D’Souza faces up to sixteen months in prison. Sentencing is scheduled for September 23.
The case involved D’Souza’s use of “straw donors” when his own campaign contributions reached their legal limit. He encouraged two people close to him to each donate to the 2012 U.S. Senate campaign of his friend, Wendy Long. D’Souza promised to reimburse them for the donations. According to a press release by the Department of Justice, “Later that same day or the next day, D’SOUZA, as promised, reimbursed the Straw Donors $10,000 each in cash for the contributions.”
D’Souza’s defenders and critics can apparently agree on several points:
(1) D’Souza committed the crime.
(2) D’Souza committed the crime in an astonishingly ham-fisted way. (There’s nothing sly about handing over cash the day after a conversation like that. D’Souza might as well have delivered the money in a box marked “Campaign Finance Law Violation.”)
(3) The government is making an example of him.
What each side means by “making an example of him” is what makes this case more interesting . . . .
Last week, I wrote about why so few people go to trial, and I talked about some of the challenges of going to trial in a criminal case in federal court, particularly in a white-collar case.
This week, I’d like to talk about another challenge with going to trial — statements made to law enforcement by the person who is accused of a crime.
After Zachary Warren was indicted in connection with the Dewey implosion, there was a lot of coverage of why, exactly, a smart, educated, fancy lawyer would talk to law enforcement without a lawyer present. (See, e.g., here, and here, and here).
As these prior pieces talk about, there’s a tactical problem with talking to law enforcement in the first place — the agent may say that he or she is just giving you a chance to “tell your side of the story” or “get the truth out” but, really, that person’s interest is in getting a conviction so they get a stat. They’re trying to build a case against you and that has less to do with celebrating the importance of impartial truth seeking, and much more to do with boxing you in so that a trial would be hopeless (see this on one way to think about the agent’s priorities when they’re taking a statement).
There is, though, another problem with talking to law enforcement — one that, hopefully, DOJ is actually making better.
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….
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: email@example.com.
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.
Whether you’re fresh off the bar exam or hitting your stride after hanging a shingle a few years ago, one thing’s for certain: independent attorneys who start a solo or small-law practice live with a certain amount of stress.
Non-attorneys would think the stress comes from preparing for a big trial, deposing a hostile witness, or crafting the perfect contract for a picky client.
But that’s nothing compared to the constant, nagging, real-life kind, the kind you get from the day-to-day grind of being a law-abiding attorney.
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