Archive for October, 2010

Decent, law-abiding citizen? Go directly to jail.

Saturday, October 30th, 2010

 

Odds are, if you’re reading this, you’ve lived an admirable life.  You applied yourself in school, got a good job, and worked hard to be a valuable member of your community.  Through your own efforts, you’ve probably earned a position of respect and responsibility.  Maybe you run your own shop, or you’re a partner in a firm, or you’re a military officer.  Your ethics are beyond reproach.  You’re raising your kids to be loyal, kind and brave.  You, dear reader, are doing everything right.

And you, dear reader, can very easily find yourself in the defendant’s seat.  In the crosshairs of a federal or state prosecution.  Facing serious prison time.

For what?  For nothing, that’s what.  You yourself may have done nothing wrong, but our criminal law has devolved so far, so fast, that you can find yourself being prosecuted anyway.

The worst effects can be seen in federal law.  As the regulatory state has expanded, as the “nanny state” has expanded, as the role of the federal government has expanded, the nature of federal criminal law has changed dramatically.  Stuff that nobody in their right mind would consider “criminal” has nevertheless been made into a federal crime, not just by congressional statute, but by regulatory fiat.

Regulatory crimes are the worst, because agency regulations are never (more…)

How the Feds Enforce the FCPA

Monday, October 25th, 2010

 

The other day, we drew a contrast between the Manhattan DA’s new public integrity unit and the way the feds go after FCPA violations, and some folks asked just what exactly the feds do in these cases.  That’s a good question.  Especially now, as the FCPA has become a major star of the feds’ redoubled efforts to fight white-collar crime.

The Foreign Corrupt Practices Act, among other things, says it’s against the law for any U.S. citizen or business to pay a bribe to a foreign official.  The penalties can be staggering, with fines calculated as the amount of income the briber hoped to receive down the road as a result of paying the bribe.  “Any” U.S. citizen means just that: anybody, not just a corporate executive.  A “foreign official” means anyone with a government job — including people working in industries that are government-owned or government-controlled.

“Bribery” includes giving anything of value in the hopes of getting something in return.  It’s really a broad standard.  A bribe doesn’t have to be an explicit tit-for-tat, and it doesn’t have to be just for the purpose of landing a choice contract.  A bribe can be just a nice dinner at a fancy restaurant that might make get you looked on with more favor next time contracts are being awarded.  A bribe can be a “facilitation payment” to a petty bureaucrat, some grease to ensure that you are allowed to do what you are already entitled to do (this, by the way, is an example of where Wikipedia, at least as of today, get things wrong).  See here for a more thorough discussion.

As with many white-collar offenses, this one is enforced by both the SEC and the DOJ.  As of this year, the SEC now has a special unit dedicated to investigating and punishing suspected offenders.  As we mentioned the other day, the point is to keep as much expertise in the institutional memory, and also to better coordinate investigation and enforcement.  On the criminal side, the DOJ’s Frauds Section is the main enforcer as a matter of law, though some local U.S. Attorney’s offices like the SDNY will handle most of the work in-house.

Over the past few years, the number of FCPA cases has risen dramatically, in part because the (more…)

On the Manhattan DA’s New Public Integrity Unit

Friday, October 22nd, 2010

 

As we were coming out of court the other afternoon, we got a call from one of the nice folks over at the WSJ, asking us what we thought about the Manhattan DA’s new Public Integrity unit.  We didn’t even know it had been formed — though we had heard Vance talk about the idea on the campaign trail.  The soon-to-be new DA had talked of ideas for a variety of new units, some of which we thought were good ideas (like the Wrongful Convictions unit, which would create office-wide policies while also investigating innocence claims), and some of which we thought were more public-relations than practical (like the Public Integrity unit).

As proposed by Vance, we said to the reporter, the Public Integrity unit didn’t really seem necessary.  It was to be a sub-unit of the Rackets Bureau, which has already been investigating and prosecuting public corruption cases with a fair amount of success for many years.  Carving out a specialty unit isn’t going to increase the number of cases they get, or improve their success rate, or have any extra effect on corruption beyond the usual.  It’s not like this is an area of crime that was being ignored.  Far from it.

It’s not going to increase the number of cases coming in, because that has nothing to do with whether there’s a special unit or not.  Public corruption cases are hard to come by, because usually the only people who know about the bribery are the ones benefiting from it.  And they’re not likely to self-report.  The DOI does what it can with the resources it’s got to ferret out a case here and there, but the reality is that (for the most part) law enforcement sort of lucks into these cases.

If you want to have an effect on public corruption, the trick is to either get magical surveillance powers to spot all the bribes going on, or else (more…)

Text or Email, Don’t Call

Thursday, October 14th, 2010

 

The WSJ has an article today called “Y U Luv Texts, H8 Calls: We want to reach others but not to be interrupted.”  The sub-headline says it all, really.  Despite the loss of context and tone that can be conveyed by an oral conversation, people prefer more and more to communicate by email or text message.  “That [our cell phones] are phones is increasingly beside the point.”

No lie.  We dropped our landline years and years ago, because who needs it?  We hate to call others on the phone, because it’s just rude to interrupt someone like that.  We rarely answer the phone when it’s ringing — it’s on silent 99% of the time anyway — because whoever is calling is just rudely interrupting us, especially if we happen to be talking to someone else in person at the time.  If it’s that important, they can leave a message.  And thanks to Visual Voice Mail, we can decide whether to listen to it in the first place.  (Tip: if the message is lengthy, it’s probably going to be ignored until we can get around to it.  Who has time for that? And forget about using old-fashioned voice mail — who has time to listen through three pointless messages from vendors on the off chance that message four is worthwhile?)

Email and texts, on the other hand, are ideal.  You can say what you want, edit it if you want to unsay or revise a thought, without interruption.  And the other person can read it when they get a chance.  Emails come right to your phone, and can be read any time.  The information gets conveyed, everyone’s happy, nobody was rudely interrupted.  There are no missed calls — the words are there to be read whenever you get a chance.  You don’t have to wade through a queue of voice mails to get the nugget of information five messages back (or 70 seconds into that one message).

If, as in most lawyer communications, you’re talking (figuratively) about a document, image, website or whatever, you can’t attach it to a phone call or a voice mail.  Email is the way to go.

(And please, don’t fax anything.  What is this, 1985?  Nobody carries a fax machine around with them.  PDF it, please.)

If you think this attitude is somehow bad for business, then again, this isn’t 1985.  Over the past few years, the number of our potential and actual clients who have preferred the telephone to emails and texts has rapidly approached zero.

Face-to-face is always best.  We’d rather sit side-by-side with a client to go over those documents (or that mass of emails the government is misinterpreting).  So much more information can be conveyed in a 10-minute chat than in a day’s worth of emails.  And sometimes a phone call really is the best option.  But most of the time, if a meeting is impractical (and it usually is), then text or email… don’t call.

Police Allowed Into Home, Shoot Dog and Unarmed Suspect

Thursday, October 14th, 2010

When the police ask if they can come in, SAY NO.  It doesn’t always end as badly as this, but it almost always ends badly.

When the police (or investigators from a regulatory agency, or any enforcement types) ask you questions, SAY NOTHING.  You don’t have to talk to them, and it can end badly.

If the cops are getting physical, DON’T FIGHT THEM.  You will always lose, and it’s just something else to charge you with.

Not blaming the victim here, but don’t let it happen to you.

For more useful advice — for law-abiding citizens just as much if not more than others — see this fine video called 10 Rules for Dealing with Police:

-=-=-=-=-

Credit goes to the partner, btw, who’s probably looking at a helluva lot of harassment for breaking the wall of silence.  Breaking the golden rule that Thou Shalt Not Speak Ill Of Another Cop is not a career-advancing move.

Nullifying Nullification

Monday, October 11th, 2010

In more than a dozen years of conducting and observing felony jury trials, at both the state and federal level, we’ve seen enough jury nullification to know it’s a real phenomenon, and not merely anecdotal.  We’ve seen jurors refuse to convict the most obviously guilty defendant, because they felt sorry for her, or because they didn’t want to put another young black man in prison, or because they had some random political or religious agenda.  We’ve seen jurors vote to convict, even though they had reasonable doubt, because it was obvious to them that the guy must have committed the crime, even if the evidence wasn’t really there.

In other words, jurors’ assessment of the evidence often has nothing to do with their actual vote on guilt or innocence.  They take it on themselves to act as a “conscience of the community,” and frustrate the whole point of their role.  (For more on how our jury system defeats justice, see our previous post here.)

The purpose of a trial jury is nothing more nor less than to decide the official version of the facts.  That’s all.  Society needs to make a decision about what to do in this case.

The decision is purely formulaic, in criminal law: if and only if we have facts A, B and C, then the defendant has committed crime X.  If fact B is missing, crime X did not happen.  It’s up to the jury to decide whether A, B and C really are what happened.  Whatever the jury decides, that is the official version of the facts.  The system can now take whatever action is appropriate under those facts, and both the parties and society can turn the page and get on with their lives.

[Truth — that’s “Truth” with a capital “T” — is not the goal.  It’s (more…)

Why Innocent People Confess — Update

Friday, October 8th, 2010

Last month, we wrote a piece here on reasons why innocent people wind up confessing to crimes they didn’t commit.  It’s a horrible thought, yet it happens far too often.  (For tips on defending cases involving a confession, see our CLE lecture over at West Legal Ed Center.)

Anyway, there’s a good article in the latest issue of New York Magazine called “I Did It: Why do people confess to crimes they didn’t commit?”  It’s worth a read, so we figured we’d give you all the link.

TCL Turns 2!

Friday, October 8th, 2010

The Criminal Lawyer celebrated its second birthday this week.  It’s not the biggest milestone in the world — nor is it particularly remarkable — but even so, we’re quietly proud.

We get a kick out of writing this stuff.  Whether it’s something silly like reporting that a new TV series got greenlighted (though we’ve never gotten a chance to watch it), or something wonky like how the ICC ought to define “aggression,” or something practical like how forensic accountants spot crimes, it’s all just fun to write.  If it wasn’t fun, we wouldn’t bother.

It’s pretty cool that you like reading this stuff, too.

One of the best things about doing this is that we feel compelled to read up on current cases and legal news, which we hadn’t followed quite as closely before.  Some legal news remains just as uninteresting as ever, but there’s a bunch of pretty nifty stuff going on out there that we otherwise would have missed.  We also find ourselves reading a lot more legal blogs, which has exposed us to a whole new world of lawyers with ideas.  What a concept, right?  Yet they’re out there, and we never would have discovered them if we hadn’t picked up the blogging habit.

So happy birthday to The Criminal Lawyer.  And now back to work.

Temporary Incomprehension

Monday, October 4th, 2010

The blawgosphere was atwitter recently over that Kentucky murder trial where the defendant had confessed, but claimed it was a false confession, due to “sleep-deprived psychosis” from drinking too much coffee.  The jury didn’t buy it (here’s a short article on it).

Did that case remind anyone else of this short film?

Still Life

It’s no secret that sleep deprivation does crazy things to the brain.  Among other things, it dramatically impairs judgment and cognition, and for this reason has for decades been seen as a highly effective interrogation tool by intelligence agencies around the world.  No matter how well trained, most people are simply going to break after a fairly short period of disorientation and sleep deprivation.  Of course, sleep deprivation also results in hallucinations, extreme discomfort, and memory problems — as well as increased suggestibility — making useful interrogation under such circumstances a job requiring the utmost care and attention.  It’s worse than dealing with a young child (as we all know, children are enormously suggestible, so that their statements can be manipulated unwittingly even by one’s body language and tone of voice).  It’s like questioning a child who is stressing from sheer confusion, and who is also in a hypnotic state.  Suffice it to say that the slightest error by the interrogator can produce completely unreliable results, or at best results that must be artfully interpreted to divine what’s more likely to be the truth.

Suffice it also to say that the vast majority of law enforcement officers do not conduct interrogations with such extreme care.  If any do.

So this this defense, in and of itself, isn’t as laughable as (more…)

Just Around the Corner

Friday, October 1st, 2010

The Supreme Court is back in session on Monday, and we’re not ashamed to admit that we’re excited.  As always.  And they’re starting off the argument season with a bang — a critical issue on federal sentencing of gun crimes.  Can’t wait.

The case is actually two cases, Abbott v. U.S. and Gould v. U.S.  The issue is just what the heck 18 U.S.C. § 924(c) means.

§ 924(c) says, if you’re convicted of possessing a gun during a narcotics crime, you get a 5-year minimum sentence, to be served consecutively.  Unless, that is, “a greater minimum sentence is otherwise provided by this subsection or any other law.”

Such straightforward language, and yet capable of so many different interpretations.  Is it written to make sure that you get at least 5 years if you carried a gun during a drug crime?  Or is the point to make sure that you get at least an extra 5 years, added to the original sentence?

Does it mean that, if you’re already facing a mandatory minimum greater than 5 years for the gun, then § 924(c) doesn’t even apply?

Does it mean that, if you’re (more…)