June 2013
Is a quick plea offer ever in the best interest of the defendant? How can the defense conduct an internal corporate investigation that satisfies the government?
Articles in this Issue
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Abandon Hope All Ye Who Enter Here
The modern federal grand jury has been warped from its beginnings as a bulwark against prosecutorial misconduct into a tool for misconduct. That misconduct is not just accidental or innocuous misconduct, but legally sanctioned abuses in the grand jury that are overlooked — and thereby encouraged — as long as a defendant is convicted at the end of the day.
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Achieving Credibility in Internal Investigations: Getting Inside the Enforcer’s Mind
Despite the white collar defense community’s intense focus on the subject of internal corporate investigations in recent years, Securities and Exchange Commission (SEC) and U.S. Department of Justice (DOJ) leaders have expressed growing dissatisfaction with the “superficial” quality of some investigations. A “check-the-box” approach to internal investigations can lead the government to redo an investigation at enormous cost to the client or worse, increase the client’s exposure. What does it take to satisfy the government? A careful review of the history of internal investigations, evolving SEC and DOJ guidance, recent published decisions and press releases, and the authors’ experience conducting investigations suggest at least one x-factor unifying the elements of a successful investigation: getting inside the mind of the government investigator.
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Affiliate News
It is that time of year! Recognizing that the local leadership and online presence of its affiliated organizations changes yearly, NACDL requests that all Affiliate executive directors and/or administrative staff please submit annual updates of relevant contact and website information before Aug. 1, 2013, so that NACDL has accurate information for local organizations in its annual member handbook. Each Affiliate should submit all updates, including the name of its 2013-2014 president, to NACDL’s Associate Executive Director for Programs Gerald Lippert at glippert@nacdl.org.
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Book Review: My Beloved World
The book’s jacket is significant. Across the top, the author’s name appears simply as Sonia Sotomayor, not as Justice Sotomayor. Across the bottom is the title My Beloved World, taken from “To Puerto Rico (I Return)” by poet José Gautier Benítez. And in the background is a large picture of a smiling justice, not in judicial robes but in an elegant black suit. These details foreshadow what lies inside the book — the story of Sonia Sotomayor before she became a judge; a woman sustained and propelled by her proud Puerto Rican heritage; a woman who openly and honestly takes us not just to Princeton and Yale Law School, but to the lonelier places of her life such as her father’s alcoholism and her failure to secure a job offer after working as a summer associate.
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Book Review: Southern Justice
After 27 years as a trial attorney, author Mary Kane knows how to capture an audience’s attention and imagination. In her first book, Southern Justice, Kane weaves the realities of being a court-appointed attorney in a small town in the panhandle of North Florida with the intrigue and drama of a high stakes murder trial — while asking the moral and ethical questions surrounding representing a minor charged as an adult in the brutal murder of a beloved citizen.
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Deferred Prosecution Agreements in the Financial Services Industry: Trends and Tips
In the last decade or so, deferred prosecution agreements (DPAs) have become the preferred method for resolving government investigations of companies — from both the prosecution and defense perspectives. For the government, such agreements avoid the expense of trial and usually require the defendant to implement remedial measures to address the problems identified in the investigation. Companies avoid indictment and prosecution, generally earn immunity for the problematic conduct identified by the government, and ideally come out with enhanced compliance measures in place.
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From the President: First Responders
In addition to fire, medical and rescue personnel, the term "first responders" should apply to criminal defense attorneys. The danger defense attorneys face comes from the anger and resentment of the public at large.
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Getting Scholarship Into Court Project
The "Getting Scholarship Into Court Project" brings helpful law review articles and other writings to the attention of criminal defense attorneys.
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I Love My Work – The Jails I Can Live Without
Several generations of female lawyers have paved the way. Now we find ourselves reflected in the faces of more than 50 percent of all law students. Women work in every level of the courts and are slowly moving into the highest echelons of legal practice. We have come a long way, yet the road before us stretches longer than the road behind.
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Meet ‘Em and Plead ‘Em: Is This the Best Practice?
A defense attorney arrives in court to represent a new client. She is given a cursory police report and/or complaint. If the attorney is lucky, she may have an opportunity to view the state’s file that includes a printout of the client’s criminal history. The state makes an offer to the new client, and it sounds decent. Perhaps the state offers probation when the client may not otherwise be eligible. Maybe the state offers a deferred prosecution or diversion program. Perhaps the offer is prison time, but by the defense attorney’s understanding of the criminal history, the offer is a lot less time than the client would be facing at trial.
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NACDL News: Benjamin Testifies at Inaugural Hearing of Overcriminalization Task Force
The inaugural hearing of the first Congressional Task Force on Overcriminalization was held on June 14 before a standing room only crowd and broadcast live via the Internet. Four witnesses testified (pictured right to left above): Steven D. Benjamin, NACDL president; John Malcolm, Rule of Law Programs policy director, the Heritage Foundation; William N. Shepherd, chair, Criminal Justice Section, American Bar Association; and the Honorable George Terwilliger, III, partner, Morgan, Lewis & Bockius LLP.
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NACDL News: Discovery Reform - Texas Governor Signs Michael Morton Act
On May 16, during the week that marked the 50th anniversary of the U.S. Supreme Court’s opinion in Brady v. Maryland, the state of Texas took a significant step toward the realization of the promise of Brady. On that date, Gov. Rick Perry signed into law Senate Bill 1611 — The Michael Morton Act. This bill delivers positive change to discovery in criminal cases in Texas. The new law codifies that prosecutors should make available to the defense, automatically upon request, all police offense reports and witness statements in their files.
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NACDL News: DNA Collection on Arrest Constitutional Under Certain Circumstances
The U.S. Supreme Court ruled June 3 in Maryland v. King that “[w]hen officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” The 5-4 majority opinion of the Court was delivered by Justice Kennedy and joined by Chief Justice Roberts and Justices Thomas, Alito and Breyer. Justice Scalia filed a dissenting opinion joined by Justices Ginsburg, Sotomayor and Kagan.
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NACDL News: NACDL Launches Public Resource for Resisting and Challenging Excessive Sentences
On May 22, 2013, NACDL launched, as a resource for its members and as a service to the public, a collection of downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (noncapital) sentences. The state profiles and related materials provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012. They are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms. The resource — Excessive Sentencing: NACDL’s Proportionality Litigation Project — is available at www.nacdl.org/excessivesentencing.
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NACDL News: NACDL Urges Follow-Through On Guantánamo Closure
Following President Obama’s major foreign policy speech on May 23, NACDL is optimistic about the administration’s recommitment to closing the Guantánamo Bay detention facility. Guantánamo and indefinite detention are failures on this country’s counterterrorism record and, as with all failed policies, they must come to an end. NACDL agrees with President Obama that Guantánamo is unnecessary and too costly. It also undermines the rule of law. NACDL will do whatever it can to assist the president in achieving this goal because closing the facility makes sound legal and economic sense.
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Voices Fighting for Justice (Inside NACDL)
Defense lawyers, male or female, serve as the voice for their clients, and that voice is the heartbeat of the legal profession.
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Women in Criminal Defense
Ensuring that women play a more vital role in criminal defense requires that women assume a responsibility for helping other women working in the field.