Tuesday, November 02, 2021

"Justice Department wrong to encourage prosecutions it's fearful of losing"

That's the title of my latest piece in The Hill.  Below is the introduction.  Would love your feedback.

The American Bar Association held a big shindig down in Miami last week, with hundreds of white-collar criminal defense lawyers gathering to get up to speed on developments in the law. Because of COVID, it’s been a while since everyone was able to get together in person. The event is known for panels that include top government officials explaining the future of white-collar prosecutions and what is to be expected in the coming years. This conference was no different — in fact, Deputy Attorney General Lisa Monaco gave the keynote address on corporate crime.

Her speech included a comment that jumped out to me and should be a serious cause of concern for white-collar criminal defense lawyers. While recognizing that “cases against corporate executives are among some of the most difficult that the department brings, and that means the government may lose some of those cases,” she explained that “the fear of losing should not deter [prosecutors].”

But the fear of losing is exactly what should deter prosecutors from bringing the weight of the criminal justice system against an individual.

The mere filing of a criminal case against a corporate executive will likely lead to that person’s firing, financial ruin, inability to work, reputational harm, emotional scarring, and the like — even if the individual is eventually exonerated. Filing a criminal case should be no small matter.


Bob Becerra said...

"Fear of Losing" should not necessarily deter prosecutions unless "fear of losing" means "indicting people with scant and questionable evidence of dubious credibility so that a jury acquittal is probable". It is the latter that should instill "fear" in prosecutors.

Anonymous said...

Epstein anyone? Bring in high powered lawyers, and scare the govt into making an unprecedented sweetheart deal. It’s nice to be rich.

Anonymous said...

It is much better to have the government understanding that it is okay to lose a case, as opposed to thinking they should win each one. The second fosters unethical win at all costs conduct. The first ensures that the rich and powerful are charged when they commit crimes, even if they are better positioned to avoid a guilty verdict. Prosecutors should not be afraid of taking on difficult cases, and losing them. This is different from prosecuting innocent people, which we all agree, is wrong.

Anonymous said...

White collar defendants being treated so unfairly. Is this even America anymore?