« "U.S. Support for Legalizing Marijuana Reaches New High" | Main | Federal sentence for receiving child porn includes forfeiture of home »

October 20, 2009

"White Collar Innocence: Irrelevant in the High Stakes Risk Game"

The title of this post is the title of an important and timely new piece by Professor Ellen Podgor.  Here is the abstract:

When one thinks of “wrongful convictions and reliability in the criminal justice process” one often thinks of street crime convictions of defendants later proven innocent through DNA or other scientific evidence.  But this Essay presents a new dimension to this issue— the white collar crime context. Three stories are considered here: Arthur Andersen LLP, Jamie Olis, and Jeffrey Skilling — all who proceeded to trial after criminal charges were brought against them; and contrasting these three with KPMG, Gene Foster, and Andrew Fastow, all who secured plea agreements or deferred prosecution agreements with reduced sentences and finite results.  The concern here is that innocence or guilt does not always frame the judicial process in white collar cases. 

The risk of trial becomes so great that in order to minimize the possible consequences, innocence becomes an irrelevancy.  Although the plea bargain to trial differential existed for many years in crimes outside the white collar crime context, the high sentences now being given to individuals and entities charged with white collar crimes place these crimes in comparable stead with street crimes.  This gives pause to whether the next phase of wrongful convictions might move beyond street crimes into the white collar world.

I am eager to hear reactions to her suggestions that "the next phase of wrongful convictions might move beyond street crimes into the white collar world."

October 20, 2009 at 03:48 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "White Collar Innocence: Irrelevant in the High Stakes Risk Game":


We have guesstimated the innocence rate on death row at about 20%, and the innocence rate in plea bargaining at about twice that rate, 40%.

The lawyer is in failure in every dimension of the criminal law. He is both too harsh and too loose on the white collar criminal. The best explanation is that the lawyer on both sides is looking out only for himself.

The prosecutor abuses his office by spending $millions on a $100 beef with Martha Stewart. Why? To get his name in the paper. Meanwhile, the Russian Mafia sacks Medicare with $billions charged for non-performed services, and they do nothing about it.

The tort immunity protects the incompetent federal lawyer from any accountability, and should end. All prosecutors should be subject to negligence claims by all involved parties, including present, past, and future crime victims.

That being said, money is life. If a white collar criminal has destroyed over $6 million in assets, he has assassinated an economic life. That warrants the death penalty, as if he had murdered a person. He has really murdered the value of a person. That landmark amount sets up a line. If the criminal crosses it, he should know, he will forfeit his life.

The innocent defendant has a moral duty to counterattack these vile federal thugs. The Supremacy offered his boss to go after the Fed DA in a case at the Supremacy's expense, for free to the employer. Knowing the personality of the Supremacy, the employer declined the offer and accepted a plea bargain. After the five years of the deal, the compliance program turned out to be several times more costly and disruptive than if the employer had suffered the full original liability with all penalties. He expressed regret at not taking the offer of the Supremacy. The Supremacy would have started with asking the judge to end the case on policy grounds, with good external justification. He would have attacked the regulations as vague and unlawful. He would have demanded full discovery on all the members of the attack team, and used it to destroy their lives to the fullest extent of the law. There would have been continual ethics complaints and investigations. Any judge refusing a motion would get the same treatment. If these cult criminals are driven from their jobs permanently, so much the better.

Posted by: Supremacy Claus | Oct 20, 2009 4:19:44 PM

It must.

Posted by: Daniel | Oct 20, 2009 4:30:15 PM

Wrongful convictions will always happen in a system run by humans. Wrongful acquittals are probably far more common.

The big problems in street crime, like inadequate assistance of counsel, are rarely the core issues in white collar cases. Instead, in white collar cases the core issues are often existential, which is one reason why innocence isn't such a core inquiry. A huge share of all wrongful conviction cases in street crime cases boil down to "you got the wrong guy." In a white collar cases, documentary evidence makes the question of "who" only infrequently important, and even "what" is often undisputed except for hair splitting that sometimes is more an issue of characterization than the hypothetical "audio-videotape of everything that happened" kind of dispute. Instead, the key issues typically involve intent and causation and crime definition. Normally, the conviction of someone who is convicted of intentional wrongdoing when in fact he was merely reckless or grossly negligent, for example, isn't considered a "wrongful conviction" in the ordinary sense of the word.

Posted by: ohwilleke | Oct 20, 2009 4:44:13 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB