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October 19, 2012

"Can the CEO Learn from the Condemned? The Application of Capital Mitigation Strategies to White Collar Cases"

The title of this post is the title of this interesting-looking new piece up on SSRN authored by Todd Haugh. I would be eager to read this article based solely on the first sentencing of the abstract, which is "Ted Kaczynski and Bernie Madoff share much in common." But especially with the sentencing of Rajat Gupta scheduled for next week (basics here), I now think this piece should be a weekend must-read for lots of folks. Here is the full abstract:

Ted Kaczynski and Bernie Madoff share much in common. Both are well-educated, extremely intelligent, charismatic figures. Both rose to the height of their chosen professions — mathematics and finance. And both will die in federal prison, Kaczynski for committing a twenty-year mail-bombing spree that killed three people and seriously injured dozens more, and Madoff for committing the largest Ponzi scheme in history, bilking thousands of people out of almost $65 billion. But that last similarity — Kaczynski’s and Madoff’s plight at sentencing — may not have had to be. While Kaczynski’s attorneys tirelessly investigated and argued every aspect of their client’s personal history, mental state, motivations, and sentencing options, Madoff’s attorneys offered almost nothing to mitigate his conduct, simply accepting his fate at sentencing. In the end, Kaczynski’s attorneys were able to convince the government, the court, and their client that a life sentence was appropriate despite that he committed one of the most heinous and well-publicized death penalty-eligible crimes in recent history. Madoff, on the other hand, with almost unlimited resources at his disposal, received effectively the same sentence — 150 years in prison — for a nonviolent economic offense. Why were these two ultimately given the same sentence? And what can Madoff, the financier with unimaginable wealth, learn from Kaczynski, the reclusive and remorseless killer, when it comes to federal sentencing?

The answer lies in how attorneys use sentencing mitigation strategies. This Article contends that federal white collar defendants have failed to effectively use mitigation strategies to lessen their sentences, resulting in unnecessarily long prison terms for nonviolent offenders committing financial crimes. The white collar defense bar has inexplicably ignored the mitigation techniques perfected by capital defense attorneys, and in the process has failed to effectively represent its clients. After discussing the development of the mitigation function in capital cases and paralleling it with the evolution of white collar sentencing jurisprudence, particularly post-Booker, this article will present seven key mitigation strategies currently used by capital defense teams and discuss how these strategies might be employed in federal white collar cases. The goal throughout this Article will be to highlight new strategies and techniques available in defending white collar clients and to enhance sentencing advocacy in federal criminal cases.

October 19, 2012 at 06:10 PM | Permalink

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Comments

Paranoid schizophrenics like the Unabomber kill 2000 people a year. Only in the upside down, Twilight Zone of the lawyer traitor can such a condition be considered to be mitigating. Indeed, the condition makes him far more dangerous than a mob assassin. All mitigating factors are really aggravating factors, except for the intentional lying of the lawyer legislator, judge and defense attorney.

Assume we accept the value of human life to be $6 million. Any economic crime exceeding that loss has destroyed an economic life, and merits the death penalty. That is the value to society, and society if the offended party by the economic crime. There should be a mandatory death sentence for those found guilty.

Once the facts of guilt are settled, the death penalty should be automatic, and not at the discretion of pro-criminal, pro-evil lawyer. The lawyer itself is a great evil factor, and a threat to the safety of the public, and the existence of our civilization, predictably and always siding with evil.

Why do ordinary people like lawyers become evil, side with evil against the public safety, and protect evil? Evil generates make work, government jobs. Victims and summary executions would end these jobs. This economic conflict of interest makes the arguments in the article in bad faith.

Posted by: Supremacy Claus | Oct 19, 2012 10:24:48 PM

It's a little difficult to portray a multimillionaire as among the downtrodden of the earth. But, sure, I have no doubt it's possible to hire some shrink to manufacture a "syndrome" of which Mr. Big is the woebegotten victim.

You really have to love white collar defense. Everyone in the world knows there's such a thing as G-R-E-E-D except the white collar defense bar.

Posted by: Bill Otis | Oct 20, 2012 3:56:10 PM

Again--until you have walked a mile in the shoes!!----My charges were definitely white collar charges---and I am EXTREMELY GRATEFUL to my white collar defense attorney who successfully navigated me through a three week complex trial with hundreds of thousands of documents and multi-codefendants to have me ACQUITTED of all charges.
I would NEVER have guessed that I would EVER be accused of crimes that entailed 20 year prison terms and the loss of a lifetime's careful work to accumulate assets to provide for my children and retirement.
It is all to easy to castigate those accused without fully understanding how EVERYTHING including our legal system is stacked against you. 96% of people plead guilty---many I believe to avoid the draconian sentences possible if you lose at trial. I wake up in a nightmare that the jury somehow swung the other way---and what that would have meant to me and my children.

Posted by: folly | Oct 21, 2012 12:14:29 PM

My humble suggestion is that white collar defense attorneys (and prosecutors) take a look at "171 Easy Mitigating Factors" published by yours truly.

Posted by: Michael R. Levine | Oct 21, 2012 12:24:33 PM

Before starting a defendant's sentencing memorandum (actually even before considering a plea), I always look at 171 Easy Mitigating Factors.

Posted by: white collar defense lawyer | Oct 22, 2012 2:50:20 PM

White collar defense lawyer, I agree. The publication is without question the best source for mitigating factors, arguments, and supporting authorities that I have found.

Posted by: David in New York | Oct 22, 2012 3:04:27 PM

I will have to concede that it's easier to find mitigating factors in Mr. Levine's book than in any of the three vacation homes the defendant bought with the dough he swindled.

Posted by: Bill Otis | Oct 22, 2012 3:48:30 PM

Levine's publication is a great resource.

Posted by: Dave in Texas | Oct 23, 2012 6:36:26 PM

I agree: indispensable publication, especially for federal defense attorneys.

Posted by: defense lawyer for too long | Oct 24, 2012 11:57:54 AM

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