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September 28, 2007

How can extreme prosecutorial power be checked?

Thanks to this post at the WSJ Law Blog, I see that Judge Lewis Kaplan is talking about the need to check prosecutorial power in corporate crime investigations.  This Wall Street Journal article provides these details:

The federal judge in the case involving allegedly fraudulent tax shelters marketed by KPMG LLP said it may be time to re-examine laws governing corporate criminal liability and the tactics used by prosecutors to investigate those cases. 

US District Judge Lewis A. Kaplan, speaking at a National Association of Criminal Defense Lawyers seminar, said the KPMG case and others, such as the government's prosecution of Adelphia Communications Corp. executives, raise questions about the government's practice of using the threat of criminal prosecution of companies in order to gain leverage in investigations of alleged wrongdoing by company employees.

He said the laws appear to give expansive power to prosecutors, lessening the oversight of courts and juries, at the expense of the constitutional rights of those accused. "I question whether placing virtually unchecked power in the hands of any branch of government" is the right thing, Judge Kaplan said.

Of course, as many know — especially those in places like Durham and Jena or those involved in cases like the border agents and Genarlow Wilson — issues of extreme prosecutorial power and the potential for abuse are not confined to corporate settings.  Especially now that prosecutors can often credibly threaten decades in prison even for first offenders if they risk going to trial (and then can get sentence enhancements even for acquitted conduct), the potency of prosecutorial threats cannot be overstated.

Indeed, I became of fan of Apprendi and Blakely in part because I was hopeful the Supreme Court was coming to appreciate the dire need for new constitutional doctrines to check extreme prosecutorial power.  Unfortunately, as the Booker remedy and many lower court rulings after Booker highlight, it is very hard to convince judges just how important it is to expand constitutional doctrines and procedural rights to restore balance in the operation of the modern criminal justice system.

In short, I strongly believe greater checks on prosecutorial power are desperately needed.  But I am quite unsure how to effectively engineer and sustain greater checks on prosecutorial power, especially in our persistent tough-on-crime political climate. 

Any good ideas, dear readers?

September 28, 2007 at 10:36 AM | Permalink


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I and many people have often complained about the extremes power of the prosecutors often abused. With all due respect to Prof. Berman, I am at a lost on how and why scholars like yourself can writes and points out the disparities and nothing can get done. During the last 12 years, both political offices enacted laws that pretty much eroded some of the fundamental rights of people. In the last year or so, I have seen people making predictions on how certain courts will make their rulings. As much as I respects the so-called scholars, so-called reputed attorneys you guys are a joke. I say this with confusion and anger. No matter what you guys say, it seemed nothing can persuades the politicians, judges, and prosecutors across the country. So, why bother? How can one groups see that there are something wrong with the system and the others don't think something is wrong?

Posted by: | Sep 28, 2007 11:40:56 AM

Since, at best, there are 200 or so corporations prosecuted per year, and the vast majority of those companies are alter-ego entities or otherwise stand-in's for individuals (i.e. a corporate plea to avoid an individual plea), excuse me while I fail to shed a tear for corporate America.

Judge Kaplan finds himself in august company questioning the state of corporate criminal liability along with noted progressive organizations like the Heritage Foundation. Corporations *ought* to fear the DOJ and make note of the Sentencing Guidelines.

The focus of the Guidelines for organizations is compliance and ethics, something we need MORE of in business, not less. For the first time ever, since Sarbanes and the corporate scandals of the past decade (including KPMG's illegal and shady tax scams), companies are now forced through FEAR to take compliance and ethics into account.

What is Kaplan smoking?

Posted by: dweedle | Sep 28, 2007 12:03:00 PM

Doc, one political solution may be to support expanding public defender offices and making their funding on par with prosecutors. In the long-term, the laws themselves are skewed, but at least here in TX there are also tremendous resource disparities for defense counsel.

Also, though perhaps politically unfeasible and inapplicable at the federal level, I've always thought it might help the problem you identify if the states didn't pay for prisons at all but merely administered them, if prison money came from county/DAs budgets so that prosecutors in one jurisdiction couldn't soak taxpayers elsewhere with excessive sentences. That way local prosecutor decisions would be accountable to taxpayers in a way they're not right now, and when the bill came due voters would know who to blame. Whaddya think?

Posted by: Gritsforbreakfast | Sep 28, 2007 12:05:19 PM

Harris County's state tax burden (both property and sales tax) towers above any other county in Texas Grits, do you really want to give Chuck Rosenthal another reason to send MORE people to TDC?

Also, while a PD's office sounds nice in academic isolation, that PD's office could be as great as PDS in Washington DC or as, erm, not-so-great as the disgraced PD's office in New Orleans was (they are trying to get their act together, I hear).

I'm not sure who you think would be staffing the PD's office in Harris County should those wages approximate the wages of the ADA's. Some of the ADA candidates would be interested, no doubt, but I'm not so sure that's the best answer. I'm not saying it wouldn't ultimately be "better", I'm just not convinced a PD solution would do much for indigent clients after having worked in that particular courthouse. I think the better solution is to raise the amount of money appointed counsel get, the amount they can spend on expenses like investigators, and tighten the qualifications and training for capital offenses. It's a money issue either way for the county, but some PD's offices are not very effective.

Also, and this is not unimportant, PD's offices often engender a lack of respect from the ADA's that you don't see when you have (most) private attorneys. The appointed attorneys in Harris County often are former assistants and typically (though not always) have some experience trying cases and relationships with the court staff (and, let's be honest, judges) that PD's often don't. Newly minted PD's while very well-meaning and well educated are not always the best litigators either.

As a wise old Texas attorney told me, "a good lawyer knows the law, a great lawyer knows the judge." Change at the courthouse is a delicate thing for defendants.

Just my perspective from the ground.

Posted by: dweedle | Sep 28, 2007 1:03:14 PM

dweedle, as far as the quote from the wise old attorney, since all the Houston judges are former ADAs, that's pretty rough!

FWIW, despite its high tax base, Harris County's massive incarceration rate is currently subsidized by the rest of the state, proportionally speaking. They incarcerate at something like half again the rate of Dallas. I agree the scheme would create lots of issues, though ... just letting my mind wander!

On the PD offices, they do provide more consistency, at least, but currently (as in Dallas) they're poor sisters - the key would be staffing them and paying for expenses at the same levels as the elected DA. Or maybe just pay the privates better (boy, won't that be popular?!). Some private lawyers do great jobs, but the indigent rates are so low IMO many defendants don't receive a particularly zealous defense.

Posted by: Gritsforbreakfast | Sep 28, 2007 2:17:55 PM

Grits: It's hit or miss. The majority of lawyers taking court appoints are up for the task, but there are obvious exceptions. But a PD's office staffed with ADA wannabees and "true believers" isn't going to get much traction with the DA or the judges, and I'd argue the "consistency" angle.

For example, there are not any new lawyers taking court appoints in Harris County as, believe it or not, there is a criterion for getting selected that requires trial experience. In fact, I'd bet there are quite a few academics that wouldn't qualify (hee hee). Most all of the working defense lawyers in Harris County have an experience advantage over ADA's that is very real and an important factor. Since 95% of all cases are pleas, the "deal making" ability of an attorney, backed with the threat of real litigation experience, is more important than how well funded the program is. Also, I have noticed that there does tend to be an extra antagonism between a PD's office and a DA that is not present with most private attorneys -- how does that benefit those 95%?

For those reasons I tend to believe that PD's would serve their clients in Harris County somewhat less effectively than the vast majority of current court appointed lawyers.

Also, for the record, not all the judges are former ADA's, but they are all nominally Republicans. There are a couple that were defense lawyers first or have been on both sides...

...that doesn't stop anyone from suggesting that they never left the DA's office though!

Posted by: dweedle | Sep 28, 2007 2:45:36 PM

Just thought I would mention two events here in DC on this and related topics, forgive me if they've already been posted by Professor Berman and I missed them:

October 26th: American Constitution Society Conference on Prosecutorial Discretion at American University's Washington College of Law
For more information, see http://www.wcl.american.edu/secle/fall/2007/documents/Agenda.ProsecutionConference.102607.pdf. To register, go to http://www.wcl.american.edu/secle/cle_form.cfm.

November 2nd: ABA Criminal Justice Section Conference on Best Practices in Plea Negotiations at George Washington University
See http://www.abanet.org/crimjust/calendar/fall2007.pdf.

Posted by: law student | Sep 28, 2007 3:00:32 PM

I wonder what the ABA and the American Constitution Society think about prosecutorial discretion... I imagine their views are about the same as those of the defense bar, the prison population, and Judge Kaplan. I hope the "conferences" are interesting.

Posted by: | Sep 28, 2007 6:07:11 PM

How about making a federal prosecutor's charging decisions subject to review for reasonableness? By doing so, the courts can reign in the abuse that Judge Kaplan is concerned about.

Paul Kurtz, Executive Director

Posted by: Paul Kurtz | Sep 29, 2007 6:54:29 AM

Mr. Kurtz has an interesting idea. We have not hesitated to subject judges' decisions to review (frequently over the objections of said judges). We have established rules about how judges must (or should) sentence, and sentencing decisions can be challenged if the rules are not followed. While the extent of such checks on judicial power is the subject of considerable controversy, the ability to review judicial decisions doesn't appear to be. If judges' choices of sentences can be questioned, why cannot prosecutors' choices of charges face similar scrutiny?

What might be the basis of such scrutiny? One possibility might be the idea of precedent, something taken into consideration as a matter of course by judges.

Let's use the Jena situation as an example (and I am not expressing an opinion on the matter one way or another). Suppose one group of students beats up an individual student and the prosecutor either chooses not to charge them or charges them with a misdemeanor. Then a second group of students beats up an individual student and is charged with attempted murder or aggravated assault. Given some sort of review process (a civilian review board, or perhaps a group of attorneys from both the prosecutorial and defense arenas), could not the second set of charges be assumed to be unreasonable based on the first unless the prosecutor could demonstrate that the two situations were sufficiently different to support the discrepancy in charges? Perhaps there could be a process for a defendant or his attorney to file a complaint with the review board if the charges appear to be substantially different from prosecutor's actions in other similar situations. It might turn out that more severe charges were justified in the second case, but at least there would be a system in place to review a situation which appears on the face of it to be unreasonable.

In response to the criticism that this would result in the expenditure of significant time and money, if it encouraged prosecutors to be more measured in their approach, the number of complaints might diminish.

Posted by: disillusioned layman | Sep 29, 2007 9:35:31 AM

In general I disagree with Kurtz and “disillusioned layman”’s view of reviewing prosecutorial charging discretions for abuse of discretion. At some level they are protected by separation of powers. But, on the other hand, they are only protected by absolute immunity for their charging decisions. Their investigation and pre-and post-charging work is protected only by qualified immunity. Perhaps any argument would be better made within that framework.

6:07:11 PM, Considering that ACS panels are usually fairly evenly stacked (heck, I went to one where an ex-Bush administration official was defending stress positions), it is doubtful that you will see any kind of ideological bent to the presentation as a whole. Perhaps you can point to an ACS presentation that did not present a range of views on a subject (they put their transcripts online), so that I can be assured that you are not making some kind of political point based on stuff you read in the paper.

Dweedle, I disagree regarding the volume of prosecutions. The complaint of the white collar defense bar is that since indictment itself of a corporation can be a death sentence, pre-indictment negotiations are conducted under duress. As a practical matter, a corporation that is larger than say 10 people (i.e. with divergent interests) would not agree to a “corporate plea” to take the place of an “individual plea” (and nor would any prosecutor agree to it). Kaplan’s problem isn’t with the prosecution of corporations per se, but with the DOJ (and certain law firms) behavior in individual prosecutions, and how the threat of a corporate indictment was used to erode certain middle class individual’s sixth amendment rights.

At some point, I am sure, people will see that a statewide PD (complete with career-tracks and pensions) might be the best way to go on issues. Sure, it includes a layer of bureaucracy, but it takes it away from the political pressures of the locale. A large and static PD would command the kind of “respect” that you seem to be seeking.

Posted by: S.cotus | Oct 1, 2007 5:38:24 AM

S.cotus: Wha?!? "eroding middle class people's rights"! When an individual is faced with a "talk or it's your job" scenario and chooses their job there is no "Sixth Amendment" right implicated. There is no constitutional right guaranteeing that your employer must play fair with you and never turn over those interview notes (because they always do) or must they indemnify you (which I hope they do so I can get paid). These are adults and they've made choices... choices certainly at least as "voluntary" as the kid under the hot lamp at the police station.

You and I might think the company owes their employees a quaint duty not to punk out, but it isn't a civil right.

Further, this "investigation is a death sentence!" is so much BS. How many times have we seen companies like BP, KBR, Statoil, ExxonMobil, UDI, Schnitzer Steel, ABB, UPS and Tyco under the microscope only to go on and set quarterly earnings records? Don't kid a kidder, I'm familiar with companies that have been shaken down in the last few years and the only ones that went down for the count were going out anyway, with the possible notable exception of ArthurAndersen losing their ability to audit.

Cutting a deal is a business decision, nothing more, nothing less. Undue pressure? BP? Pleeeeease. A cost benefit analysis is made and throwing Mr. Middlemanager overboard is chosen. It'd be the same regardless of how much the DOJ scared the fancy and expensive Washington lawyers.

The Heritage Foundation hosted a PR sesh in DC about this 6 months ago, and when pressed, not a *single* speaker could point to this alleged rash of doomed companies so burdened with investigations they just had to close the doors. It's total bunk.

Following the rules due to a healthy fear of the DOJ is and SHOULD BE part of doing business. If it wasn't for the aggressive stance of the DOJ and other regulatory agencies companies would not now be getting serious about compliance and ethics (and creating lucrative opertunities for compliance consulting -- yay!).

I understand the white collar bar's reasoning, they are advocates after all, but the "horror stories" they talk about are very thin.

Posted by: dweedle | Oct 1, 2007 6:15:54 PM

dweedle, Guess what? Judge Kaplan disagrees with you. Sure, KPMG (and Skadden) made some bad decisions, but they essentially told their employees (and ex-employees) that they would breach their contracts (for payment of fees) if they didn’t cooperate with the government.

I didn’t say “investigation is a death sentence.” I said INDICTMENT is a death sentence. Moreover, I didn’t say that mere investigation was over-burdensome. However, I did say that the threat of an indictment (which is generally not subject to general oversight) caused the problems in KPMG.

KPMG is more of a horror story not for business but for individuals and the lengths that lawyers will go to trample others’ 6th amendment rights.

Posted by: S.cotus | Oct 2, 2007 2:41:30 PM

Okay, same argument applies for indictment. I can name a laundry list of companies like ABB Vetco, Young & Rubicam, Goodyear, Lockheed, Titan, etc... that were indicted. I pose the question to you, besides Andersen can you name some big companies brought to their knees by indictment? KPMG is still in business and doing fine.

Again, why more boo-hoo for the employee that consciously chooses to talk rather than walk? Sorry, but I fail to see how a private company (or it's lawyers) owe anyone else a duty. In fact, couldn't you cynically argue that the company's lawyer has to try and zealously defend his/her client by getting those statements by any legal method?

The fact is most counsel very clearly tell the employee that they ain't their lawyers, that there is no privilege, and that if they want a lawyer for themselves the company lawyer isn't it. Then, the employee says "I got nothin' t'hide!" and spills his/her guts.

As far as indemnification goes, yeah if there is a contract then sue. But there is also *no constitutional right* implied by having your lawyer paid for by your employer. It may be mean, but it hasn't a thing to do with the 6th Ame.

Posted by: dweedle | Oct 2, 2007 4:50:21 PM

Dweedle, KPMG wasn’t indicted, but they were brought to their knees, or at least had to figure who to throw to the wolves. I see the dynamic as even more disturbing. Smaller companies that are willing to fight have been brought to their knees, and put out of business. Large companies are less willing to actually fight post-indictment, and often they have more to offer the government (in addition to not making the government feel guilty about making many people unemployed).

In KPMG, the employer owed the employees a contractual duty to pay for their lawyer. “Without limitation.” Their contract spelled out that it wouldn’t simply provide them with representation as employees, but unlimited personal representation for all transactions related to their employment. (I can provide you with Judge Kaplan’s opinions if you can’t find them.)

KPMG suggested various counsel to their employees. These counsel happened to have “reputations” for cooperating with the government. After a bit, they told the employees (and ex-employees) that unless they cooperated they would stop paying the bill.

Then you say:
>>>As far as indemnification goes, yeah if there is a contract then sue. But there is also >>>*no constitutional right* implied by having your lawyer paid for by your employer. It >>>may be mean, but it hasn't a thing to do with the 6th Ame.

Seriously, read, Kaplan’s opinion. He essentially does just that. He says, “Because KPMG owed a contractual duty, I am staying proceedings, and directing the clerk to open a civil docket so that KPMG can restart paying the bill.” He sort-of rejected the idea of making the government pay because of sovereign immunity, but I think he could have revisited that. The 2d Circuit says, “Not so fast, there are other alternatives…” and then on remand most of the charges get dismissed.

Posted by: S.cotus | Oct 2, 2007 6:15:28 PM

Oh? It couldn't be that their counsel suggested cooperation because that's the right move 95% of the time? Again, I don't see how civil rights are implicated by not getting your lawyer paid for... it sounds like a good lawsuit tho.

Posted by: dweedle | Oct 3, 2007 9:53:25 AM

Dweedle, Whether or not it was the right move is anyone’s guess. However, when someone retains counsel that agrees to be their lawyer they are entitled to objective and effective advice. When, in the case of KPMG, the government exerts pressure on the party that is legally bound to pay the bills to provide advice and representation in a certain way, the government is interfering with the person’s defense a la Strickland.

Posted by: S.cotus | Oct 3, 2007 10:23:14 AM

S.cotus: That's a delicate dance that *always* happens in indemnification cases. While I'm honestly rah-rah for scaring DOJ off it's "stop indemnifying wrongdoers" stance because it means invoices being paid regularly (but I enjoy arguing with you anyway). It is only a very foolish lawyer who'd allow him/herself to be pressured by the company lawyers into violating their duty to their client. Being saddled with a "play ball" lawyer has more to do with ethics than the purse, methinks.

That being said, my ticket is the only way I can stay in Lone Star beer and BBQ since I'm allergic to real work, so I'm not risking it for nobody.

Bottom line: KPMG is more about lawyers getting paid than civil rights... I don't think I'm being too cynical and I'm not certain which is more important.

Posted by: dweedle | Oct 3, 2007 11:18:57 AM

>>>Bottom line: KPMG is more about lawyers getting paid than civil rights... I don't think I'm being too cynical and I'm not certain which is more important.

You might be right about this. Certainly the paying of the bills is what drives the issue....

.... but....

The Bill of Rights was written not really as a safeguard for “civil rights” the way we know them, but more as a protection of property: at least as far as the 2d, 3d, 4th, 5th amendment are concerned. Nevertheless, because a bunch of rich merchants (some of whom owned slaves) really cared about these issues, the US developed a healthy body of law on the relationship between the individual and the state that has been copied and accepted as almost an axiom in other countries.

Posted by: S.cotus | Oct 3, 2007 11:28:55 AM

Ah, the "individual and the state," but wouldn't you agree that the argument of state action (by proxy) in the KPMG case is, at best, stretched thin since refusing indemnification is not a direct violation of 6th Ame. rights and I would argue that it isn't entirely clear that KPMG is a state proxy since most of that case law has to do with people collecting new evidence as de facto agents (i.e. recordings, etc.) rather than simply turning over non-privileged materials such as internal investigations? Not to beat a totally dead horse, but KPMG had good business reasons to cooperate and throw employees under the bus that would exist even when the DOJ prosecutors act like Mr. Rogers.

Posted by: dweedle | Oct 3, 2007 12:29:13 PM

Dweedle, Sure, I guess they have good business reasons. The problem isn’t so much with KPMG’s behavior in breaching a contract (which Kaplan thought he had a remedy for that would solve all problems) but with the fact that the government used its threat of indictment to manipulate KPMG into monkeying with their employee’s 6th amendment rights.

Let me try an analogize to the 4th amendment terms. We all know that the government can’t get around the 4th amendment by hiring someone to conduct an otherwise illegal search. What happened here is that the government threatened a locksmith with the death penalty unless the locksmith would provide his clients (whom he is contractually bound to) with defective locks and doors, that, say, happened to swing open every time a cop walked by. Now, providing people with defective locks is not a violation of any constitutional right, in itself. But when the government threatens to kill someone unless they secretly provide them, it is.

And that is what happened -- but in the 6th amendment context.

Posted by: S.cotus | Oct 3, 2007 2:20:37 PM

Again, I do not see how is a company providing a (decent)lawyer, or paying for a lawyer, is a 6th Ame. right. The employees could have refused. The practical fact that is lost in all of this is employees rarely refuse to cooperate in internal investigations even without the aid of counsel. I don't see the analogy to a third-party search at all as they employees are always welcome to reject the lawyer provided and reject cooperation... a search is involuntary.

Posted by: dweedle | Oct 4, 2007 12:46:03 PM

Dweedle, This wasn’t an internal investigation where there is no right to counsel, anyway.

The employees were also mislead by the company into thinking that the payment of fees would be not contingent on certain legal strategies. The government, in essence figured out that it could dictate the legal strategies of witnesses and defendants by telling KPMG what to do (without telling the defendants that they were doing it).

The strange part is, that if KPMG had simply refused to honor its contracts in the first place without being told to breach them by the government, this would not be a problem. The employees could sue, but since the government’s conduct wouldn’t be implicated, it probably wouldn’t have delayed the trial.

Whether a “plain view” “search” is voluntary or not I guess is a little more of a nuanced question then I first thought.

Posted by: S.cotus | Oct 5, 2007 2:45:31 PM

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