Monday, December 16, 2013

"There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it."

That's Ninth Circuit Chief Judge Kozinski dissenting from the denial of en banc review in U.S. v. Olsen.  He isn't happy with the panel:

"The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

Or the prosecutor:

"Protecting the constitutional rights of the accused was just not very high on this prosecutor's list of priorities. The fact that a constitutional mandate elicits less diligence from a government lawyer than one's daily errands signifies a systemic problem: Some prosecutors don't care about Brady because courts don't make them care."

Ho hum. 

At Judge Kopf's blog, he recommends having prosecutors turn over everything to the defense to make sure these complaints can't be lodged.  I've never heard a good response to this proposal.

Some other notes:
A retreat of any degree from federal prosecutors' reliance on DPAs to resolve corporate criminal investigations would be utterly misguided. The risk of another Arthur Andersen-style collapse is much too high to justify any added measure of deterrence a criminal conviction offers. While many are quick to criticize the Justice Department for maintaining a de facto policy that some institutions are too big to jail or take to trial, few have offered a convincing argument for why the perceived benefit of a conviction outweighs its potential costs. Corporate defendants, unlike their individual counterparts, can't go to jail—however big or small. They don't suffer the same reputational harm as a branded criminal. Nor do they lose any fundamental constitutional rights. A conviction is purely symbolic. But in pursuing this symbolic gesture, prosecutors are needlessly creating the risk of emitting a systemic shock through the financial system—one that's too big to ignore.
The cautionary note Attorney General Eric Holder sounded in 2002 in arguing against the indictment of WorldCom is as appropriate today as it was then: "to ensure that even more innocent Americans are not harmed, prosecutors must not give in to the pressures of the day and feel compelled to indict more corporations simply because they can."
  • Alyson Palmer is doing a great job covering the 11th Circuit appointment process.  Here are recent articles here and here covering how the Judge Rosenbaum may be confirmed quickly and who is being interviewed for the open Alabama seat (Judge Dubina).
One last thing -- Thanks again to everyone for their kind words and emails over the past week.  I really appreciate it.


Anonymous said...

DOJ is a threat to our national economy? Thanks for the laugh....

Anonymous said...

*Another* possible Pryor to the Eleventh Circuit? That would be three Pryors. That would be OOC.

Also, it appears as though in Alabama you apply to be a U.S. Court of Appeals judge? That seems unusual, no? Was that suggested by President Obama? Though I'm sure he'd consider all nine applicants, I'm not sure why he'd feel obligated to choose Dubina's successor from only that list of applicants.

Anonymous said...

Lichy is in good company arguing Affluenza.

Ridiculous. If a corporation has a right to free speech, it has a right to be prosecuted.


How about the harm caused to the public perception of the justice system when the rich get to walk?

The real issue is that the majority of lawyers who deal with criminal investigations are not trial lawyers, are deathly afraid of court, and would be hurt in the pocket if that is the way the cases were going - then the client's would want to hire a real lawyer.

Anonymous said...

But Thornton went further, slamming the tribe in finding the fraud, racketeering and malpractice counts were without merit even if he had jurisdiction. "The record is utterly devoid of any evidence of criminal intent or intentional misconduct," he wrote in the order handed down Sunday.

Motions for sanctions against the tribe and its lead attorney, Bernardo Roman III of Miami, are before Cooke and Thornton.

Roman, according to a deposition of another tribal leader, William Osceola, is paid at least $250,000a month from the tribe.

Thornton found no fraud, no misconduct, no fraudulent billing and no malpractice.

He noted the tribe changed its argument on Lewis Tein's bills from an allegation of pure fraud to a claim the charges were "unreasonable." A review of the invoices found no "genuine issue of material fact," said Thornton, dispensing with allegations of malpractice, racketeering and fraud.

"Not a single piece of evidence reveals, and no witness testified, that any work was done maliciously or simply not done," the judge wrote.

He also said the tribe's own records and officers thoroughly undermined the lawsuit. Officials said they knew of no fraud by Lewis Tein, and financial records show all invoices were submitted and approved.

Miami defense attorney William Barzee, a partner with Barzee Flores, who has supported Lewis Tein's position, called the ruling "total victory" for the firm.

"It was definitely scathing," Barzee said.

He also said the slash-and-burn litigation opens the tribe to sanctions.

"I would not be sleeping well if I were the tribe's attorneys," Barzee said.