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July 28, 2006

The extraordinary price of going to trial in white-collar cases

Ellen Podgor at White Collar Crime Prof blog has this strong post discussing a recent bank fraud sentencing in Miami: it appears the defendant's decision to go to trial rather than plead out like co-defendants cost him perhaps 25 or more years in prison!  I can fully understand and even justify a small sentencing disparity between co-defendants who plead guilty and those who put the government to its burden of proof.  But are we really respecting the right to a jury trial when defendants have every reason to fear that exercising this right could cost them decades more of their life behind bars?

On a related point, this article details that, in the sentencing for Qwest chief financial officer Robin Szeliga for insider trading, federal prosecutors have recommended a sentence of only six months "in return for her cooperation in their case against her old boss."  The government is, of course, eager to send the message to white-collar defendants that going to trial could cost you the rest of your life, but pleading guilty and cooperating will likely only lead to a slap on the wrist.

July 28, 2006 at 07:50 AM | Permalink


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Paying rent on the courthouse is the cornerstone of the Guidelines, where the prosecutor determines what the sentence will be, and pleading guilty or cooperation are your only bargaining chips. This was not the case prior to 1987 where the parole board reviewed each case and most first-time offenders were released on the one-third date, no matter whether it was a guilty plea or trial. In this game of high stakes sentencing, the prosecutor has the deck of cards, the deal and the rule book, so do you really want to play. I went to trial on a conspiracy to manufacture amphetamines; the admitted kingpin testified that he bought chemicals from me, he received 110 months for 3 pounds of speed, while I was sentenced to 235 months for 106 pounds, the total amount he said he manufactured. Should I have accepted the 15 year deal or the 8 year deal, I had no agreement with anyone, I sold chemicals, I did not think I was involved in any conspiracy. The scenario being played out in white collar cases has been the norm since my trial in 1989 for drug cases, only now it is the wealthy and affluent who must decide how to play the rigged game. When they came for the drug users and dealers, You said nothing!!!

Posted by: Barry Ward | Jul 28, 2006 10:00:43 AM

The scales of justice can be rigged for you to fail. Serious fraudulent/false evidence can be considered and instructed to the jury. When a prosecution witness just confirmed your innocence the judge can immediately call for a secret conference in the hallway toward judges chambers and that evidence is no longer in the typed printed court transcript. Tampering with evidence and the obstruction of justice are maintained today. Public funds continue to be spent maintaining this fraud/sham. Your constitutional guaranteed fair/public/jury trial can be rigged to fail and public funds continue to maintain it today.

Posted by: MOLINA | May 6, 2007 6:22:51 AM

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