It hasn't been a good couple of weeks for the DOJ's Antitrust Division.
In Denver, they tried a 10 defendant case twice and both times it hung as to all defendants. Ouch!
Wearing those horse eye-blinders, DOJ announced it would retry the case a third time. That didn't sit well with the judge, who summoned the head of the Division, Jonathan Kanter, to court to explain how a third trial would be in accordance with DOJ federal prosecution standards. Bloomberg covered it here:
At the hearing Thursday, the judge repeatedly asked Kanter why he thinks the result of a third trial will be different. He also quizzed Kanter about a Justice Department policy requiring prosecutors to go forward with cases only if they believe the evidence will “probably” result in a conviction. But Brimmer said he doesn’t have the authority to require prosecutors to follow the standard.
The judge concluded the hearing by urging Kanter to “go back to Washington and think about that.”
In addition to those standards, there are, of course, basic standards of fairness and decency. If you can't convict any of 10 defendants after a length trial, let alone two of them, it's time to call it quits. Congress needs to fix this. The government should get one shot to convict. Then it's tie to move on to the next one.
But that's not the only Antitrust black eye. It brought its first wage-fixing case in Texas against two defendants. Between the two of them, they were charged in 6 counts. The Division lost 5 of those counts, including the top counts. It only got a conviction on a lesser false statement count against one of the defendants.
So what does DOJ do? It issued a press release with the heading: "Former Health Care Staffing Executive Convicted of Obstructing FTC Investigation into Wage-Fixing Allegations." Are you kidding me? The release starts this way:
Today, a Texas man was convicted of obstructing a Federal Trade Commission (FTC) investigation, following an eight-day trial in the Eastern District of Texas.
“Lying to federal agencies is a crime, plain and simple,” said Assistant Attorney General Jonathan Kanter of the Justice Department’s Antitrust Division. “And, as the court’s rulings in this case make clear, so is wage fixing. When obstruction affects the federal government’s investigations into labor market collusion and impedes our ability to protect workers, we will use all the tools available to prosecute all of these crimes to the full extent of the law.”
How embarrassing. But it's also wrong. These guys were exonerated. And it's not until the 6th paragraph of the release that you see what actually happened at the trial. Thank goodness there was some honest reporting about it, including from Bloomberg, which had this headline: "DOJ’s First Criminal Wage-Fixing Case Ends Mostly in Defeat."
Antitrust is now waiting for a verdict in the first "no-poach" criminal trial. Let's see what happens there and how Antitrust handles it. In the meantime, they should be rethinking their new "aggressive" tactics in criminal cases.
UPDATED Friday evening 7:40 -- The jury acquitted both defendants in the first no-poach trial -- Kent Thiry and DeVita. It's going to be hard for the government to spin this one!