The Criminal Lawyer

White-collar prosecutors and defense attorneys have been keenly awaiting today’s decision in U.S. v. Ionia Management. At oral arguments last November, the court permitted amicus filer Andrew Weissmann (former head of the Enron Task Force) to make a case for limiting the criminal liability of corporations. The fact that he was given oral argument time meant that the court was at least considering the argument, hence the interest in today’s decision.

Weissman’s argument was that, although the doctrine of respondeat superior holds a corporation criminally liable for the acts of an employee, the corporation should not be liable if the employee acted contrary to the corporation’s policies.

In today’s decision, the court flatly rejected this argument. “We refuse to adopt the suggestion that the prosecution, in order to establish vicarious liability, should have to prove as a separate element in its case-in-chief that the corporation lacked effective policies and procedures to deter and detect criminal actions by its employees.”

The court went on to re-state that a corporation cannot be immunized from liability just by having a compliance program, no matter how extensive it may be. The existence of a compliance program would only be relevant to whether an employee was acting within the scope of his authority. But if employees are acting within the scope of their authority, and they break the law, then the corporation is going to be liable.

The court’s decision was a disappointment to many defense attorneys, who believe that the standard for criminal prosecution of corporations is too low. The ability to charge a corporation with a crime is a deadly weapon, as demonstrated by the downfall of Arthur Andersen in 2002. The ease of bringing such charges gives prosecutors a lot of leverage to demand full cooperation from the company when its employees are under investigation. The government can often stiff-arm corporations into making huge concessions, including stiff fines, to avoid prosecution.

But the decision was not exactly a surprise. During oral arguments, Judge Guido Calabresi questioned whether judges even could limit the existing scope of respondeat superior. It was an interesting academic issue, but Congress or perhaps the Supreme Court would have to deal with it.

It wouldn’t be very surprising to see this issue brought before the Supreme Court. Weissmann has been working on changing this bit of law since he left the government. At the heart of the problem, he says, is a misinterpretation of the Supreme Court case New York Central v. U.S., 212 U.S. 481 (1909). That case has been interpreted in such a way that criminal liability is easier to prove than civil liability under respondeat superior. That’s the opposite of how it usually works, of course.

Our prediction is that the Supreme Court won’t make the change, and it will be up to Congress to tighten up the doctrine. If at all. For the time being, nothing is changed.

District Court Judge Percy Anderson sentenced Jeanetta Standefor to more than 12 years in prison on Tuesday, for running an $18 million Ponzi scheme that preyed on middle-class black investors.

Standefor, who is also black, solicited investments from 650 people around Pasadena who thought the money would go to buying properties about to go into foreclosure. To maintain the illusion of profits, Standefor transferred $14 million of the invested money to early investors. She also spent about a million per year on herself, according to AUSA Stephanie Yonekura-McCaffery. The operation was run through her company Accelerated Funding Group — a name that is practically probable cause in itself.

At the sentencing hearing in the Central District of California, victims told Judge Anderson how they had trusted Standefor with their savings, often their life savings, after she first befriended them. Investors were told that they could make 50% profits in the first month.

Standefor’s attorney, federal defender Charles Brown, argued for leniency. “She is not a serial killer,” he said. “She is not a drug dealer. This is not a person who needs to be thrown in jail and locked up to learn her lesson.” He added that she was a foster child “who worked her entire life to prove her worth. . . [but] she took shortcuts, and started taking from Peter to pay Paul, and that’s how we got here.”

Judge Anderson disagreed with the defense attorney’s characterization, telling Standefor that even if this was just a white-collar crime, she was just as guilty “as if you’d taken a gun out and held it to the victims’ heads.”

Judge Anderson then ruled on sentence. Shortly before he imposed the sentence, however, Brown made one last attempt for leniency. Urging the judge to reconsider, Brown pointed out that the sentence was not consistent with those for similar cases around the country. Brown argued that it seemed to him that blacks get harsher sentences, even when they are convicted of white-collar crimes.

“Not with me, they don’t,” interrupted the judge, who is also black. “This isn’t about being black.”

Standefor was then sentenced to 151 months in prison and almost $9 million in restitution.

The Bill of Rights, notably Amendments 4-6, protects accused individuals from improper action by the police. The typical remedy for police violation of these rights is suppression of the evidence that would not have been gathered but for the violation. This Exclusionary Rule protects the justice system, by ensuring that the maximum lawfully-gathered evidence is available, while ensuring that defendants aren’t prosecuted with unlawfully-gathered evidence. Police officers and departments are not punished for violations, because that would create an incentive to avoid borderline situations where evidence could have been obtained lawfully. Rather than do that, the Exclusionary Rule lets officers go right up to the line of what they’re allowed to do, and only takes away what they shouldn’t have been allowed to get.

The Exclusionary Rule is not an individual right, but is rather a remedy that has been crafted over generations of thoughtful jurisprudence. It simultaneously maximizes protection of the individual’s rights, and society’s interest in law enforcement. It balances two powerful and competing interests, and it does the job elegantly. As such, it is a beautiful rule, but one that is nevertheless criticized — both by law-and-order types and by defendant-rights types — when its role is misunderstood. Unfortunately, it is misunderstood all the time.

So it was no surprise to see plenty of misunderstanding of the Exclusionary Rule in yesterday’s Supreme Court decision in Herring v. United States (No. 07-513). Split 5-4 (and with delightful sniping in the footnotes), the justices on either side of the ruling tried to clarify what the Exclusionary Rule means, but only demonstrated that they’re missing the point. All of them. In their attempt to clarify the rule, all they did was muddy the waters.

That’s right, we just said that we understand the Exclusionary Rule better than the Supreme Court. Modesty is not our strong suit.

The Herring case arose in Coffee County, Alabama. Bennie Dean Herring was someone who’d had his share of run-ins with law enforcement over the years. His truck was impounded, and he went to the Sheriff’s Department to get something out of it. When one of the Sheriff’s investigators found out, he had the Coffee County warrant clerk check to see if Herring had any outstanding warrants. There weren’t any in Coffee County. Then they called neighboring Dale County to check. The Dale County computers showed an active arrest warrant for failing to show up in court on a felony charge. Based on that information, the Coffee County officer pulled Herring over as he left the impound lot, arrested him, and recovered methamphetamines and an illegal gun.

In the meantime, the Dale County warrant clerk went to get a copy of the warrant, to send to the Coffee County officer. But there wasn’t one in the file. So the clerk checked with the court, and found out that the warrant had been recalled. For whatever reason, the information never got from the Dale County court to the Dale County warrant database. The warrant clerk called the Coffee County warrant clerk immediately, and the warrant clerk immediately called the officer, but the arrest and search had already taken place.

At trial, Herring moved to suppress the evidence on the ground that the arrest was illegal, as the warrant it was based on no longer existed. The trial court said the evidence was admissible, because the officer did nothing wrong, and acted in good faith on information that the warrant was still outstanding.

On appeal, the Eleventh Circuit agreed that the Coffee County officer did nothing wrong. Any error was independent of that officer. The error was the result of negligence on someone else’s part, and was moreover a negligent inaction rather than some government action. The Circuit therefore held that the negligence was so attenuated from the officer’s actions that any benefit to be gained by suppression, and so the evidence was admissible under the “good faith” rule of U.S. v. Leon, 468 U.S. 897 (1984).

Writing for the majority, Chief Justice Roberts pointed out that, even if the search or arrest was unreasonable, the Exclusionary Rule doesn’t always apply. It’s a last resort only. He reiterated that exclusion is not a right of the individual, but is instead a deterrent. The benefits of a deterrent must be weighed against its costs.

Thus, when police have acted in “objectively reasonable” reliance on a warrant that was later held to be invalid, or on a statute that was later declared unconstitutional, or on a court (not police) database that mistakenly stated that an arrest warrant was outstanding, the Supreme Court has held that the evidence was admissible under the “good faith” rule. The Court had held that evidence should be suppressed only when the officer knew or should have known that the search was unconstitutional. Illinois v. Krull, 480 U.S. 340 (1987).

“Objectively reasonable” (or “good faith”) means “a reasonably well-trained officer would have known that the search was illegal, in light of all the circumstances.” It’s not a subjective test of what the officer actually intended, but rather a test of what he should have known. Here, there was no reason to believe that the Coffee County officer wasn’t being objectively reasonable in relying on the information from Dale County’s warrant clerk. So the officer did nothing requiring suppression.

The underlying error didn’t require suppression, either. Here, the clerical error wasn’t the result of a recklessly-maintained system. Nor was it the result of the police planting false information for the purpose of justifying false arrests later on. The kind of clerical error here is not something that the Exclusionary Rule could affect or deter meaningfully.

Roberts concluded by saying “we conclude that when police mistakes are the result of negligence such as that described here, rather than a systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’ In such a case, the criminal should not ‘go free because the constable has blundered.’”

In this opinion, Roberts’ reasoning was certainly sound. However, he amplified the erroneous viewpoint that the proper policy purpose of the Exclusionary Rule is to deter future misconduct. The policy is categorically not to deter. Deterrence is a purpose of punishment, and this is not a rule of punishment. Deterrence gives the police an incentive not to approach the line of impermissibility. That is precisely what the Rule is designed to avoid.

The Exclusionary Rule is not a rule of deterrence or of punishment, but is instead a rule of balancing — balancing individual rights with society’s interests in law enforcement. Roberts does get the concept, as in his discussions of balancing marginal utility against cost. But his repetition of the “deterrence” fallacy just confuses an otherwise clear argument.

Justice Ginsberg similarly the Exclusionary Rule in her dissent (joined by Justices Stevens, Souter and Breyer). Like Roberts, Ginsberg says the purpose is deterrence. But she goes even further to say that the Rule should be used to deter practically all police error.

This is a much more expansive purpose for the Exclusionary Rule (or as Ginsberg puts it, “a more majestic conception”). She goes so far as to say that any arrest based on carelessly-maintained database information would be unlawful, and would require suppression.

If the Rule were to be used as a deterrent, Ginsberg does make an argument that its marginal utility even in cases of carelessness, like this one, is sufficient to justify its use. Suppressing evidence could very well lead to reforms in the data management, to ensure that the same mistake doesn’t happen again. But exclusion is not the only means to that end, and is not even a very suitable means, as there is no actual pressure on the record-keepers to change their ways. The more effective means would be pressure from police leadership and political superiors to fix the process. Also, exclusion of evidence in County A is hardly likely to influence behavior in County B.

Justice Breyer issued his own dissent, joined by Justice Souter. In it, he makes the same error of ascribing deterrent purposes to the Exclusionary Rule, rather than the purpose of balancing interests. And as a result, he falls into the same trap of reasoning as Ginsberg.

Breyer wants a bright-line rule. Because of his focus on deterrence, he would draw the line between the police and the courts — if the error was made by court personnel, then they are not going to be deterred by suppression, so the Exclusionary Rule should not apply. But if the error was made by any police personnel, then the Rule should apply. Breyer fails to explain, however, how police database clerics are in any way deterred from negligent error by the suppression of evidence seized as a result of such error. He similarly fails to explain how court clerks are somehow different, so that they could not have been so deterred by suppression.

Ginsberg and Breyer’s arguments fall apart because they’re looking at suppression as a punishment, a deterrent, rather than as the result of a balancing of competing interests. Roberts gets it, but he too makes the same mistake to some degree. This decision seems to have muddied the waters, instead of clarifying the rule.

Oh well, better luck next time guys!

This morning, the Supreme Court returned from its long break to issue a unanimous ruling in Chambers v. United States (No. 06-1120, Jan. 13, 2009). At issue was the crime of failure to report to jail, and whether that crime is a “violent felony” for the purposes of the Armed Career Criminal Act.

ACCA imposes a mandatory 15-year sentence for a felon who unlawfully possessed a firearm, and who also has three prior convictions for either drug crimes or violent felonies. A “violent felony” is defined by 18 U.S.C. § 924(e) as one that (among other things) “involves conduct that presents a serious potential risk of physical injury to another.”

The government wanted Chambers sentenced to the mandatory 15 years, based on prior convictions that included an Illinois crime of failing to report for weekend confinement.

Chambers said that the Illinois crime was not a violent felony for the purposes of ACCA. The government disagreed, arguing that the crime demonstrates a “special, strong aversion to penal custody,” and therefore was akin to a prison break. And prison escapes by their nature involve conduct that presents a serious potential risk of physical injury to another.

The Court didn’t buy that argument. Unlike a prison break, which is an active crime, failing to report is merely a crime of inaction, the Court said. The Court added that, sure, the defendant must have been doing *something* during his absence from jail, but there is no reason to believe that it was something risky to others. On the contrary, he’s probably less likely to draw attention to his whereabouts by “engaging in additional violent and unlawful conduct.” Aversion to penal custody, no matter how “special, is beside the point.”

The Court added that, of 160 cases involving a failure to report in a 2-year study by the Sentencing Guidelines Commission, “none at all involved violence — not during the commission of the offense itself, not during the offender’s later apprehension.” The government itself could only find three examples in 30 years.

Because of this, the Court held that this particular crime does not count as a violent felony for ACCA purposes, reversed, and remanded.

On Tuesday, the Fifth Circuit ruled on Jeff Skilling’s appeal from his conviction in the Enron case, upholding the conviction, but sending the case back for re-sentencing. Skilling may be able to raise a Brady issue on remand, as well, so the case doesn’t seem to be over. The opinion is 106 pages long, so we will summarize the ruling and its meaning for you here.

Skilling challenged his conviction, on the grounds that the government’s theory of “honest services” fraud was wrong. The government’s case let the jury decide on three purposes of Skilling’s conspiracy, one of which was to deprive Enron of the honest services of its employees. Because the jury returned a general verdict, if any one of those legal theories was insufficient, then the verdict must be reversed.

Skilling focused on the honest services theory, arguing that it was insufficient because his actions were done to give Enron a higher stock price, so it was in the corporate interest. He didn’t act in secret, and wasn’t self-dealing.

In making this argument, Skilling relied on the Circuit’s previous Enron case, United States v. Brown, 459 F.3d 509. In that case, a loan secured by Nigerian barges was fraudulently booked as revenue. The defendants in that case were specifically ordered by their CFO, Andy Fastow, to carry out the deal. Not only did they believe that Enron had a corporate interest in the scheme, and was a willing beneficiary of it, but their superiors ordered and approved their actions. Furthermore, they were paid more depending on whether they successfully achieved the goal.

The Court held that Skilling’s reliance on Brown was misplaced. The Brown rule absolves low-level employees of liability for honest-services fraud when:

1) the employer creates a particular goal,
2) the employer aligns the employees’ interests with the employer’s interest in achieving that goal, and
3) higher-level management authorizes or orders improper conduct in order to reach the goal.

Here, the first two conditions were met, but the third was not. Condition 1 was met when Enron created a goal of meeting Wall Street earnings projections. Condition 2 was met as Skilling got paid more if Enron met those projections. But condition 3 was not met, as there was no evidence that anyone besides Skilling authorized his conduct. The Board tacitly approved several of the underlying transactions, but never authorized him to engage in fraudulent conduct.

Because the third condition was not met, the Brown rule does not absolve Skilling of his liability. His conviction was therefore upheld.

—

With respect to sentencing, Skilling argued that the district court got the Guidelines calculation wrong, and that the sentence is unreasonable under §3553. The Court didn’t get to the §3553 issue, because it held that the Guidelines calculation was indeed incorrect, and a court has to do the Guidelines right before the §3553 factors come into play.

Skilling appealed a §3C1.1 two-level enhancement for obstruction of justice, and a §2F1.1(b)(8)(A) four-level enhancement for jeopardizing a financial institution.

The §3C1.1 enhancement was based on a determination that Skilling perjured himself as to his sale of Enron stock right after he resigned from the company. He’d tried to sell his stock while still CEO, but it would have had to be reported. So he resigned, then tried to sell his stock. But then September 11 happened, and he wasn’t able to sell until September 17. Skilling testified to the SEC that his order to sell on September 17 was due to his concerns over the market’s reaction to 9/11. The judge decided that was perjury.

On appeal, skilling didn’t argue that it wasn’t perjury. Instead, he argued that the court should have suppressed his SEC testimony in the first place, because the SEC misled him as to the fact that the investigation was criminal in nature.

The Circuit, however, pointed out that suppressible evidence can still be used at sentencing, and none of the exceptions to that rule apply here. The Court also found no justification for the original perjury. So the two-level enhancement was proper.

The §2F1.1(b)(8)(A) enhancement was based on the finding that Enron’s retirement plans were “financial institutions” for the purposes of that Guideline. Retirement plans aren’t specifically mentioned in the Guideline’s definition, which enumerates a long list of included entities. Various kinds of pension funds are included, however. And the list does include a catch-all “any similar entity.”

With respect to “pension funds,” the Guidelines don’t define the term. But a pension requires more than just employee investment for later payout — a pension has definitely determined payouts. Here, the retirement funds didn’t have specific benefits, they were just there as a pool for funding any benefits that might be given. So the Court decided they didn’t count.

With respect to the catch-all, apart from pension funds, the Guideline definition lists classic financial institutions like banks, investment houses, and the like. The Court did not want to expand the definition to declare every corporate retirement plan to be a financial institution.

Because the retirement plans weren’t financial institutions, the four-level enhancement was improper. So Skilling’s sentence was vacated, and the case was remanded for resentencing.

—

In addition to these main issues, the Court also rejected Skilling’s other challenges to his trial. Giving a “deliberate ignorance” instruction was at worst harmless error. None of the other jury instructions were problematic. The venue was proper. There was no prosecutorial misconduct.

Interestingly, however, the Court specifically stated that Skilling can raise Brady issues on remand. An FBI interview note showed that Andy Fastow didn’t think he had discussed a certain list with Skilling. This was omitted from the formal “302” report provided to the defense. Skilling claims that Fastow was talking about a list of talking points that Fastow had testified at trial he actually had discussed with Skilling.

The Circuit found this troubling, but the trial court never saw the notes or ruled on this claim, so nothing could be decided on appeal. But the Court instructed that “Skilling must bring this claim to the district court before we can address it.”

Therefore, Skilling might be able to get a new trial! If Skilling can show that there was a Brady violation, this case could be far from over. The government claims that the list in question is unrelated to the case, however, so we’re just going to have to wait and see.

In 1963, the first year of comparable recordkeeping, 91% of murders were solved. In 2007, the number was only 61%.

At the same time, the technological ability to solve murders increased dramatically. Scientific crime scene investigation significantly increases the amount of useful evidence that can be found. Digital crime labs and computerized analysis make it easier to interpret that evidence. And of course, modern DNA techniques enable police to make unbelievably accurate identifications from the smallest particle of hair or fluid. Today’s reality would have been a science fiction fantasy twenty years ago.

So what gives?

For one thing, the kinds of murders have changed. In previous generations, murder was almost always a personal matter. The victim and the killer knew each other, had a relationship. Husbands killed wives. Friends killed friends. Rivals killed each other. To begin a successful investigation, a detective would paint a bull’s-eye on the victim. The closer a suspect was to that bull’s-eye, the more likely they were to be the killer. Cases were solved not so much by technology and physical evidence, as by getting people to talk or confess. Acquaintance homicides were, and still are, often solved because the killer contacted the police or surrendered himself.

But now, a significant number of murders are committed by gang members. Gang members and drug dealers get killed by their own groups, who aren’t likely to talk lest they be killed themselves. They get killed by members of rival gangs, and may not even know their killers. Killers may even kill completely unrelated, innocent people, through mistaken identity or reckless “drive-by” shootings. Witnesses are intimidated by the threat of being killed themselves if they come forward. So relying on people to talk or confess is not as likely to solve these crimes.

For another thing, technology only gets you so far. DNA only identifies someone if you have a sample of their DNA to compare. Gunshot residue only helps if you have the suspect’s fingers in the first place. Fingerprints are harder to find than people think, and even then can only be compared to known fingerprints. In other words, technology helps you confirm that you have the right suspect, but first you have to get that suspect. And getting the suspect in the first place often means an old-fashioned investment of shoe leather — hitting the streets, talking to possible witnesses, and conducting skilled interrogations.

Because of the advances in technology, acquaintance homicides are truly being solved at a greater rate than they were in previous decades. The suspects are known, or easily found, so the DNA and other scientific tests make identifying the killer much more certain. The scientific identification also helps get confessions.

But stranger-to-stranger homicides have increased dramatically. And despite the technological advances, these continue to have a high probability of never being solved. Motive is hard to figure out. The killings are often part of a planned crime, so that less evidence will be left behind for law enforcement to find. And any connection between killer and victim is going to be hard or impossible to identify.

-=-=-

So what can be done?

Studies find no correlation between the number of available police officers, or the amount of their budget, and the ability to clear homicide cases. So shoving more officers on the street, or shoveling more money at the problem, is not a solution.

Studies do show, however, that cases get cleared when detectives are ambitious and they are held accountable for the success or failure of their investigations. Cases get cleared more often when the detectives have the necessary time to devote to the investigation, and when they are part of a specialized unit where everybody is focusing on the same kind of crime.

How do you get ambitious detectives? Study after study shows this to be a huge factor. Media attention can help, when there is a lot of pressure to solve a high-profile case. But in urban areas the media is often antagonistic, media praise of police rare, and so is an underdeveloped tool. Better P.R. by the police could improve ambition. Increased internal attention, status and reward for greater clearance rates would help, as well.

Solving stranger or gang-related murders requires witnesses to come forward. They fear retribution, or being punished themselves for their own crimes. Most murders, even stranger murders, are witnessed. So a critical need is to overcome witness fears.

Studies have found that most witnesses were actually involved with the crime. They either took part in some way, they brought the killer and victim together, or they tried to stop the murder from taking place. “Innocent bystanders” only make up 9% of witnesses.

Civic pride is not likely to cause the majority of witnesses to come forward. Gang culture, and the culture of the communities where such gangs flourish, teaches witnesses to do the opposite. Cash rewards sometimes help, but the amounts commonly offered are simply too small to justify the risks a witness would run if he came forward.

Ensured anonymity is a must. But in a judicial system that properly allows the accused to see and confront his accusers, anonymity cannot be ensures. Witnesses know this. Only a real and system-wide practice of concealing the appearance and identity of witnesses to violent crimes is likely to inspire the necessary confidence. And in our legal culture, we as Americans simply value the confrontation rights of the accused more than we value the evidence we might gain by limiting those rights. That’s just the way it is.

-=-=-

Reducing gangs themselves, and changing the culture in which they flourish, is the long-term solution.

Gangs arise within subcultures where there is little other societal bonding and community for young males, where those young males lack (or do not see) the ability to gain status and women otherwise, and where there is a general lack of control over one’s life. Entertainment media have a huge impact on perceptions of the world. These factors create perverse incentives, so that gang membership and codes of behavior can seem to be the right choice to make.

Common factors of such communities are a lack of value placed on education, a reliance on government or others, a lack of ownership, and a xenophobic relationship with the larger community. Undervalued education minimizes earnings and options in adulthood, as the lack of parental involvement kills schools and a thou-shalt-not-do-better-than-us attitude among peers kills student ambition. Reliance on welfare, the police, programs and others to take care of life’s needs leads to an endemic lack of personal responsibility, which kills family ties and any bond to a larger civic society. Illiteracy, immersion in the skewed reality of television and musical entertainments, and a perception that the rest of society is foreign and irrelevant, further impact perceptions of how the world works.

These problems have often been many generations in the making, and are not susceptible to overnight changes. Policy changes would be required that strengthen the family bond, rather than giving incentives to father children from multiple mothers without requiring any long-term ties and responsibilities. Policy changes would be required that lead community members to see themselves as part of the larger society, and not separate from it, subject to separate rules. Policy changes would be required that create incentives for parental involvement in schools, and pave the way for cultural views of education as the means to success.

OJ Simpson was sentenced today in Clark County District Court, after previously being found guilty of multiple crimes arising out of an armed break-in and theft at a Las Vegas hotel. The details can be found in any news outlet you fancy. But what sentence did he get? The headlines are all over the place.

Some sources say he got 12 years. Many say 15 years. Some say 33 years. Some say 9 years. What gives?

The reason for the confusion is the fact that OJ was sentenced on 10 counts, with many of the sentences running concurrent, and some running consecutive.

Concurrent sentences are served at the same time. So if you get sentenced on two counts, one for 5 years and the other for 6 years, to run concurrent, then you only face 6 years. But if they were to run consecutively, then you’d be serving 11 years.

So how does OJ’s sentence break down?

First, the concurrent sentences:

Count 1: Conspiracy to Commit a Crime: 1 year
Count 2: Conspiracy to Commit Kidnapping: 1 to 4 years (eligible for parole after 1 year, max of 4)
Count 3: Conspiracy to Commit Robbery: 1 to 4 years
Count 4: Burglary While in Possession of a Deadly Weapon: 2yrs 2 mos to 10 years
Count 5: First Degree Kidnapping with Use of a Deadly Weapon: 5 to 15 years
Count 6: First Degree Kidnapping with Use of a Deadly Weapon: 5 to 15 years
Count 7: Robbery with Use of a Deadly Weapon: 5 to 15 years
Count 8: Robbery with Use of a Deadly Weapon: 5 to 15 years

So the concurrent sentences have a max of 15 years, with eligibility for parole after 5 years.

Next, the consecutive sentences:

Counts 5 to 8 add 1 to 6 years to run concurrently with each other, but consecutive to the rest
Count 9: 1.5 to 6 years consecutive to Count 8
Count 10: 1.5 to 6 years consecutive to Count 9

So add 1 + 1.5 + 1.5 = 4 years to the parole eligibility, for a total of 9
Then add 6 + 6 + 6 = 18 years to the max number, for a total of 33

So OJ is eligible for parole in 9 years, and could conceivably serve a maximum of 33 years.

Hope that clears things up.

The respected journal Science will publish tomorrow a research study that suggests that the threat of punishment can keep people from getting in trouble. Stop the presses!

You’d think that this might have been studied before. But previous studies (focusing on freeloading vs. pro-social behavior) only focused on short-term outcomes. This new study, on the other hand, found in the long term the threat of punishment becomes deeply embedded in people’s subconscious, so that they come to fear getting in trouble.

You’d think this might have been too obvious to require study. But as Karl Sigmund of the University of Vienna explained to LiveScience.com, “the experimental work is extremely important and timely, as many researchers had voices concern whether punishment is not too costly a tool to promote cooperation.”

Clearly punishment isn’t the only tool out there to affect people’s behavior. Socialization, community involvement, and positive inducements are all strong factors. But we’re going to go out on a limb and say that, until something else comes along that satisfies society’s need for deterrence, removal (and, sadly, retribution), punishment’s going to remain part of our toolbox for a long long time.

[The research was performed by a team led by Simon Gächter at the University of Nottingham.]

Over the summer, New York City’s police force demanded that the FBI and the Justice Department make it easier to get wiretaps on suspected terrorists. The feds refused, and the dispute has escalated ever since. The New York Times reports that correspondence has flown between the U.S. Attorney General and the Police Commissioner themselves, as “each accuses the other of mishandling terrorism cases and embracing an approach that made the public more vulnerable.”

Wiretaps are considered one of the most invasive state actions, and so any request for electronic eavesdropping is going to be put under enormous scrutiny before it is ever presented to a judge. Every “i” must be dotted, every “t” must be crossed, and no detail is too small to be overlooked. The slightest inadvertent error can result in a wire being deemed improper, resulting in the exclusion of all the evidence gathered as a result. No law enforcement agency wants to spend vast amounts of time and money on a wire investigation, only to have the evidence thrown out.

So prosecutors carefully prepare wire applications, dissect them, and then send them up the chain of command for approvals. In the DOJ, these internal approvals can take an extraordinarily long time. New York City prosecutors, with bureaus specializing in such applications, can turn around a wire application much faster. Although both tend to err significantly on the side of caution, to minimize the chance of error being found down the road, the feds are much more cautious than the city prosecutors, and will reject wiretap applications that would have passed muster in the DA’s office.

Also, federal wiretaps tend to be short and sweet, not often extending beyond the initial 30-day period normally authorized. Renewal of the authority requires another application, and there just isn’t time to jump through all the hoops while the evidence is still coming in. City-initiated wiretaps, on the other hand, can sometimes extend for 18 months or longer, as they lead to more phone lines and additional evidence.

So there is already a cultural divide between federal and city law enforcement when it comes to wiretaps. The feds are traditionally much more cautious and unlikely to request a wiretap,* while NYC law enforcement, though still very cautious, is not nearly so shy.

Now enter the FISA Court.

The Foreign Intelligence Surveillance Court is set up to review applications for warrants to eavesdrop on suspected spies or terrorists. The court must find probable cause that the target of the surveillance is a foreign agent or terrorist, that the wiretap is going to turn up evidence of such activities, and there is no reasonable less-invasive way to get the evidence.

Only the FBI and the DOJ have access to the FISA Court, however. So if the NYPD wants to get a warrant, it needs to submit it to federal scrutiny. That subjects their applications to much lengthier review, as a result, and also makes them more likely to be rejected and not presented to the court in the first place.

The NYPD now believes that its efforts are being thwarted, and accuses the feds of improperly blocking its wire applications.

So on October 27, police commissioner Ray Kelly accused the feds of putting the public at risk by being too nit-picky. He wrote that the feds were “constraining” critical terrorism investigations, and “doing less than is lawfully entitled to protect New York City,” so that “the city is less safe as a result.”

Four days later, attorney general Mike Mukasey wrote back saying that the city’s approach would be counterproductive, because they’d seek warrants that might exceed what the law allows, so that the evidence gathered could be thrown out, thereby making the citizens less safe.

Mukasey seems to see the FISA Court as little more than a rubber stamp. Presumably, if the court was doing its job, a warrant application that didn’t satisfy the law would be rejected by the court itself. But the DOJ appears not to trust the court to do its job, and so would act as a stand-in for the court.

Although the NYPD didn’t make that point, it did respond by putting the blame squarely on the DOJ for taking too long to review applications, and for applying “a self-imposed standard of probable cause which is higher than that required by Supreme Court precedent.”

As a former prosecutor who did quite a lot of wiretaps involving both city and federal authorities, your humble blogger will be very interested to see how this pans out. In the meantime, it looks like the fight is only getting started. Stay tuned.

* This perplexes the New York Times, which has long accused the Bush administration of trying to improperly extend its wiretapping authority and other national security powers. Many insiders, however, blame the administration for trying too hard to appease its opposition by limiting governmental powers and announcing that to the world, thereby only creating opposition where none previously existed. So while the criticism from the left about wiretapping and other legalities may have been undeserved, the administration has no-one to blame but itself.

As we reported yesterday, the New York Attorney General and the Southern District of New York have teamed up to investigate allegations of wrongdoing with respect to credit-default swaps. The AG’s office is now reported to have subpoenaed trading data and communications from several interdealer brokers, small firms that facilitated the swaps and other trades.

A CDS is a form of insurance, though contractual in nature and not regulated. Essentially, the CDS buyer wants to protect a debt investment or asset. In return for fees from the buyer, the CDS seller agrees to make a payment if the underlying debtor defaults or goes bankrupt.

CDS contracts enabled the securitization of subprime mortgages into tranches that could be rated as investment-grade. If underlying asset values dropped, the CDS payment would still net a profit. Presuming, of course, that the CDS seller actually had the wherewithal to make the necessary payment.

Interdealer brokers earned fees from facilitating CDS deals between financial institutions. Buyers and sellers need to keep their bargaining positions secret from each other, which makes direct negotiation difficult. For a fee, an interdealer broker puts buyers and sellers together, while keeping the identities of the parties a secret from each other.

Law enforcement is now investigating whether interdealer brokers were breaking the rules, and disclosing information that they existed for the purpose of keeping secret. Also under investigation is the possibility that interdealer brokers were giving out false information, so as to manipulate CDS prices. These CDS prices in turn had a huge effect on the share values and bond prices of major financial institutions.

Three major flat-screen TV and monitor manufacturers have pled guilty to price fixing, in a case brought by the DOJ’s Antitrust Division.

Sharp, LG Display and Chunghwa will pay $585 million in fines, pursuant to their plea. The DOJ alleged that, as a result of the price-fixing conspiracies, consumers paid inflated prices for products with LCD screens. Affected products ranged from flat-screen TVs to computer monitors, laptops, iPods and cell phones.

Division chief Thomas O. Barnett stated that these were international conspiracies that “affected millions of American consumers who use computers, cell phones and numerous other household electronics every day.” Without calculating how much extra the consumers wound up paying, he predicted that this plea would now result in lower prices.

The Wall Street Journal reports that the world’s largest LCD maker, Samsung, had cooperated with the Antitrust Division and was not named in the plea announcement. AAG Barnett declined to comment on whether Samsung had received legal immunity. Federal law provides that the first company to give evidence of a criminal conspiracy can receive immunity. When the investigation first became public in 2006, Samsung stated that it had “pledged its full and continuing cooperation” with law enforcement.

Yesterday, the Federal Reserve and the U.S. Treasury promulgated new rules that prohibit the processing of payments related to Internet gambling. By forbidding financial institutions from processing the payments, the government has essentially outlawed online gambling.

What constitutes “online gambling” is left up to state law. A few kinds of betting are still allowed, including government lotteries, horse racing and fantasy sport leagues. College and pro sports books, however, are no longer allowed. The same goes for online poker, roulette, craps, slots and other casino-type gaming.

Internet gambling is believed by many in law enforcement to be important to organized crime. It is a profitable source of revenue in its own right, and is difficult to police. “Street level” bookmakers are also believed to use online sports gambling to facilitate their activities, and to hedge or shift the risks of the street wagers they accept.

The new rule has been opposed by Democratic lawmakers and gambling businesses, as well as by financial institutions that would bear the burden of implementing the rule.

“The nation’s top white-collar criminal defense practices are receiving a steady flow of inquiries from clients embroiled in the ongoing credit crisis,” reports the National Law Journal. This is consistent with reports we have heard within the white-collar defense community.

With the economy continuing to take hits from the financial sector, there seems to be a growing demand for blame. Billions of dollars in pensions and retirement funds have disappeared, the money supply is crippled by banks refusing to extend credit, and jobs and tax revenue are at stake.

As the public and its elected officials call for punishment, state and federal prosecutors are launching investigations to see whether anyone broke the law. Anyone involved with complex debt instruments, which appear to have been responsible for much of the vanished wealth, ought not to be surprised to find themselves part of a criminal or regulatory investigation.

As we previously reported, Lehman Brothers executives are already being looked at. And of course the Eastern District of New York has already indicted two managers of the Bear Stearns subprime mortgage hedge funds. But that, our sources tell us, is only the tip of the iceberg.

Credit-default swaps, which enabled much of the subprime hedge fund investments, are now the focus of a joint investigation being brought by the New York Attorney General and the Southern District of New York.

The SEC has also begun taking action in investigations that had appeared to be dormant. Of particular interest to the SEC would be whether executives made misleading statements to investors or analysts about the financial health of their funds or institutions.

“Attorneys report hearing from clients,” reports the NLJ, “who are either already in receipt of subpoenas from federal and state investigators, or who are worried about what the mail will bring. Every lawyer interviewed agreed that their clients — including those confident they kept within the law — would be wise to anticipate that the government will cast a very wide net.”

The New York Times reports on a trend of public defenders refusing to take on new cases, on the grounds that their workload is so high that they cannot effectively defend their clients. With budget cuts coming at the same time as caseloads are rising, government-appointed lawyers claim to be reaching “the breaking point.”

Right now, a lot of public defenders are starting to stand up and say, “No more: We can’t ethically handle this many cases,’ ” said David J. Carroll, director of research for the National Legal Aid and Defender Association.

Similarly, many capable attorneys decline to volunteer for indigent-defense panels (representing those for whom the public defender’s office might have a conflict of interest), because the government-funded compensation is too low — in New York only a quarter or less of typical private rates. Fewer volunteers means more work for each.

There may be something to the argument that much of this work is routine, and not particularly time-consuming. But there are only so many hours in the day, and once you get past a certain volume of cases, things are going to have to slide.

For these public defenders, time is a valuable commodity. Most of it goes to priorities like trials, hearings and court appearances, which are huge time sinks. What is left mostly goes to cranking out canned suppression motions and picking up new cases. There isn’t much time for original research, much less a thorough investigation of any given case. Potential witnesses go unidentified, or uninterviewed. Evidence goes undiscovered or unexamined.

Plea bargains, the usual result for most cases, also suffer. Prosecutors make their offers based on what they think a case is worth, which in turn is based on what the prosecutor knows about the case. Unless a defense attorney can present new evidence, or a new way of looking at the evidence, the defense attorney is going to have a hard time changing the prosecutor’s mind. But without time to develop such evidence or new ways of looking at it, the public defender can be left with few tools beyond whining and begging, which are rarely effective. The upshot is that a defendant must settle for a worse deal, because there wasn’t time to negotiate a better one.

It’s not as though prosecutors don’t share the same high caseload, and suffer the same budgetary constraints. Prosecutors also have much more work to do for a given case, as they must investigate and assess the evidence, prepare and present witnesses to grand juries, and prepare and present witnesses at hearings and trial, in addition to making the necessary court appearances, responding to the motions, etc. If both sides are under similar burdens, perhaps the injustices balance out. Or perhaps the injustices are magnified, as time-starved prosecutors similarly miss out on the chance to develop evidence or insights that would better serve the defendant.

The underlying concern is whether defendants’ interests can be adequately protected by public defenders with barely sufficient resources to go through the motions for most cases. Perhaps, and perhaps not.

It is difficult to see, however, how refusing to represent defendants at all can possibly help them. This ploy seems intended to serve nobody’s interests but those of the public defenders themselves.

Milberg LLP partners David Bershad and Steven Schulman were sentenced in federal court yesterday afternoon, each receiving 6 months in prison. Along with two other partners, they had been convicted for offenses arising our of the payment of kickbacks to lead plaintiffs in securities and shareholder class actions, which netted the firm more than a quarter of a Billion dollars in attorney fees.

These 6-month sentences were far less than what the other two partners were given earlier this year: William Lerach got 24 months, and Melvyn Weiss got 30.

At Bershad’s sentencing hearing, U.S. District Judge John Walter intitially indicated that he thought Bershad ought to get the same sentence as Lerach, as they had pled to the same conduct. Bershad’s lawyers sought probation, and the prosecution asked for 3 months in prison plus 3 months of community confinement. Apparently swayed by Bershad’s statement of remorse, letters of support, and the fact that Bershad’s plea was the first domino that led to the other pleas, the judge came down to the six-month jail term.

At Schulman’s sentencing hearing, the prosecution asked for a year in prison, as Schulman had taken longer to plea than Bershad, and so had provided less assistance. Schulman’s lawyer argued that the sentence should be no longer than Bershad’s, and that the delay in pleading guilty was due to attempts to work out a plea that would let Schulman keep his law license — notwithstanding the fact that there was no way he could conceivably keep that license given what had happened. Judge Walter wasn’t impressed with those arguments, but ultimately gave him the same 6-month sentence, taking into consideration the letters in support and the fact that Schulman had three young children who would be affected by a longer sentence.

Bershad had pled to conspiracy to obstruct justice, and to making false statements under oath. Schulman had pled to a racketeering charge. In addition to jail terms, each was sentenced to pay a $250,000 fine, on top of forfeitures of $7.75 million and $1.85 million, respectively.

Milberg LLP was formerly known as Milberg Weiss LLC, and as Milberg Weiss Bershad & Schulman LLP. At one time, it accounted for half of all securities class action settlements. The firm engaged in “strike suits,” wherein a corporation whose share price had fallen would be sued in a shareholder class action, with an individual shareholder identified as the class representative. The suits were brought for the purpose of settlement for nuisance value. Individual shareholders did not approach the firm, but rather the firm monitored the stock market and manufactured its own cases. To get individuals to to take the role of lead plaintiff, the firm would share its fees with them. The firm also paid kickbacks to stockbrokers who referred clients. At least one expert witness, specializing in estimating damages, was paid on a contingency-fee basis. Bershad and Schulman were indicted, along with the firm, in 2006 on various counts, including racketeering, mail fraud and bribery.