When Prosecutors Fight (with Each Other)
April 27, 2006
The rise in white-collar prosecutions has been accompanied by an escalation of fights between prosecutors. The inevitable tension, if not enmity, that arises when multiple prosecutors chase the same target presents potential opportunities for the white-collar defense counsel. True, the client's perspective might be similar to that of a prey stalked by hungry carnivores. But his or her counsel should carefully assess whether a client's case can, in fact, be advanced by exploiting a law enforcement turf battle.
A Guide to Effective Brady Motions
April 27, 2006
Too often, criminal defense attorneys file boilerplate '<i>Brady</i> motions' seeking in essence 'any and all information which may be favorable to the defendant and material to the issue of guilt or punishment.' <i>Brady v. Maryland</i>, 373 U.S. 83 (1963). Prosecutors respond in cookie cutter form that they are 'aware of their <i>Brady</i> obligation and will disclose such evidence when and as appropriate.' This might be on the eve of trial, mid-trial, or even post-trial. If truly pressed at the motion stage with a detailed <i>Brady</i> request, some prosecutors and courts have relied on <i>Strickler v. Greene</i>, 527 U.S. 263, 280 (1999), as grounds for denying the defense request.
Is the White-Collar Defense Attorney Headed for Extinction?
April 27, 2006
In the 3 years since Former Deputy Attorney General Larry Thompson's expansion of the Principles of Federal Prosecution of Business Organizations (the 'Thompson Memorandum' or 'Memorandum'), the number of front-page corporate prosecutions and record fines have continued to grow. Prior <i>Business Crimes Bulletin</i> articles have discussed the impact of the Memorandum on the role of defense counsel, including the effects of waiver of corporate attorney-client privilege. However, the privilege is not all that is disappearing.
Is Your Hotline AAA-Rated?
March 29, 2006
Many companies and organizations have hotlines that are needlessly weak or even ineffective, and they often don't even know it. Unfortunately, there are no up-to-date, authoritative standards for hotlines. This has forced Securities and Exchange Commission registrants and their auditors to use an unusually high degree of judgment in evaluating the effectiveness of hotlines for Sarbanes-Oxley '404 reporting. Non-registrants are more vulnerable to 'phantom hotline syndrome.'<br>Some entrepreneurs, and their advisers, may not be impressed by the need for a hotline at an e-business, but they're mistaken about the importance of this tool in the current environment of ever-increasing regulation and scrutiny of business practices.
Can Fed. R. Crim. P. 17(c) Even the Playing Field?
March 29, 2006
As the pace and scale of federal white-collar prosecutions grow, an inherent inequality in the process threatens the fundamental fairness of the criminal justice system: the uneven access to information. The government typically spends years investigating with the grand jury and using subpoena powers, immunity offers, and foreign treaties to gather virtually any document or testimony it wants. Moreover, because the government has no obligation to subpoena exculpatory records, it can purposely sanitize its case, avoiding subpoenaing documents that are helpful to the defendant.
Another View: Corporate Cooperation Taken to New Lows
March 29, 2006
The Deferred Prosecution Agreement (DPA) entered into between KPMG and the U.S. Attorney's Office for the Southern District of New York on Aug. 29, 2005, is just the latest example of the federal government's perverting the notion of corporate cooperation, so that 'cooperation' means uttering only the words that the government authorizes. Corpora-tions are increasingly faced with the option of being put out of business or capitulating to the demands of overzealous prosecutors who possess seemingly unchecked powers. The ability of prosecutors to force corporations to accept a full complement of draconian provisions too frequently results in individual employees' being left behind to take the fall for the 'good' of the company. KPMG's acceptance of the terms of the DPA is a clear example of how these prosecutorial powers can strip individuals of their constitutional rights.
