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prosecution

Via Politico, a WSJ news item from last month that should not pass unremarked:

New York’s banking regulator is pushing to install government monitors inside the U.S. offices of Deutsche Bank and Barclays … as part of an intensifying investigation into possible manipulation in the foreign-exchange market … The state’s Department of Financial Services notified lawyers for the two European banks earlier this month that it wanted to install a monitor inside each firm, based on preliminary findings in the agency’s six-month currencies-market probe … Negotiations are continuing over the details of the monitors’ appointments, but New York investigators expect to reach an agreement soon.

The regulatory agency has selected Deutsche Bank and Barclays for extra scrutiny partly because the records it has collected so far from more than a dozen banks under its supervision point to the greatest potential problems at those two banks, the people said. Plus, Deutsche Bank and Barclays are among the dominant players in the vast foreign-exchange market, so investigators hope a close-up view into their businesses will help them observe other players and trading patterns [emphasis added -- W.O.].

We’ve covered the expanding role of settlement and litigation monitors in past posts, and noted the seemingly arbitrary and unaccountable powers these monitors may exercise during their stay within the enterprises to which they are embedded. But there’s something novel (isn’t there?) about the installation of monitors loyal to state overseers whose mission includes watching other firms and market players besides the one that has admitted misbehavior (or has been found by a court to have misbehaved). When you have dealings with a company, and perhaps decide to entrust your sensitive personal or business data to it, should you be worried that it wind up crossing the screen or desk of a quietly emplaced monitor reporting back to Albany, or perhaps Washington?

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Never mind what rightish pundits have to say about the Perry indictment. Leftish pundits like Jonathan Chait are tearing it to shreds all by themselves. It reminds me of when prosecutor Andrew Thomas, sidekick of Sheriff Joe Arpaio in Phoenix, pressed charges against some of Arpaio’s political rivals over actions within their official authority, an episode that ended with Thomas’s disbarment. Chait:

They say a prosecutor could get a grand jury to indict a ham sandwich, and this always seemed like hyperbole, until Friday night a Texas grand jury announced an indictment of governor Rick Perry. The “crime” for which Perry faces a sentence of 5 to 99 years in prison is vetoing funding for a state agency. …

The theory behind the indictment is flexible enough that almost any kind of political conflict could be defined as a “misuse” of power or “coercion” of one’s opponents. To describe the indictment as “frivolous” gives it far more credence than it deserves.

When you’ve lost not just David Axelrod and Matt Yglesias but even Jonathan Chait and Scott Lemieux for a legal complaint against a conservative, you’re not just aboard a sinking ship, it’s more like you’re grasping a piece of random driftwood.

P.S. John Steele Gordon, Commentary: “the blow back from left, right, and center is so intense that Perry may well be the first public official to actually gain political clout from being indicted.” (& welcome Jacob Gershman/WSJ Law Blog readers)

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August 4 roundup

by Walter Olson on August 4, 2014

  • Administration tees up massively expensive regulation docket for after election [Sam Batkins, American Action Forum]
  • More on FedEx’s resistance to fed demands that it snoop in boxes [WSJ Law Blog, earlier]
  • Ethics war escalates between Cuomo and U.S. Attorney Preet Bharara, but is sniping in press suitable role for prosecutor? [New York Post, Ira Stoll]
  • “Mom Hires Craigslist Driver for 9-Year-Old Son, Gets Thrown in Jail” [Lenore Skenazy]
  • One-way fee shifts, available to prevailing plaintiffs but not defendants: why aren’t they more controversial? [New Jersey Lawsuit Reform Watch]
  • Water shutoff woes sprang from Detroit’s “pay-if-you-want culture” [Nolan Finley, Detroit News]
  • “CPSC Still Trying to Crush Small Round Magnet Toys; Last Surviving American Seller Zen Magnets Fights Back” [Brian Doherty]

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  • “Emails show feds asking Florida cops to deceive judges by calling Stingrays ‘confidential sources.’” [Wired]
  • Trial penalty: mortgage fraud defendants in study fared far worse if they insisted on process of law to which they are notionally entitled under Constitution [Wes Oliver at Daniel Fisher's; more on joint Duquesne Law/Pittsburgh Post Gazette study from reporter Rich Lord, first, second]
  • “‘Florida’s Worst Cop’ Finally Convicted of Something, May Be Headed to Jail” [Ed Krayewski, Reason, earlier]
  • “Plans to expand scope of license-plate readers alarm privacy advocates” [Center for Investigative Reporting, earlier here, here, here, here, here] But at least our sensitive personal information will be safe with the government! [Lowering the Bar]
  • “Challenges to ‘shaken baby’ convictions mounting” [Wisconsin State Journal, earlier]
  • A Pavlik Morozov for the Drug War? “Brave” Minnesota 9-year-old hailed for turning in parents on pot rap [Minneapolis Star-Tribune, background on Soviet youth hero]
  • “Police SWAT teams in Massachusetts form private corporations, then claim immunity from disclosure laws” [Radley Balko via @gabrielroth, more from ACLU report on police militarization]
  • Sad and bad: “House Republicans vote to block Obama’s new pardon attorneys” [MSNBC, Jacob Sullum, my Cato take]
  • Ready for sorghum-patch unrest? More than 100 U.S. Department of Agriculture agents are armed with submachine guns [Matt Welch]
  • “Cop who punched Occupy Wall Street protester gets tax-free disability pension” [New York Daily News, video of punch]
  • “Officials could identify just one [Bronx] prosecutor since 1975 … disciplined in any respect for misbehavior while prosecuting a criminal case.” [City Limits via Radley Balko]
  • Georgia drug raid: flash-bang grenade thrown into crib badly burning toddler [Tim Lynch, PoliceMisconduct.net "Worst of the Month"]
  • New book by Sidney Powell critical of USDOJ explores Ted Stevens, Enron prosecutions, has foreword by Judge Alex Kozinski ["Licensed to Lie": Craig Malisow/Houston Press, Legal Ethics Forum, Amazon]
  • Two times over the legal limit, hmm. Would it help to flash my badge? [Prosecutorial Accountability on state bar discipline against San Francisco deputy d.a.]

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“We are in a situation now where most Americans are criminals, but they either don’t know it, or they think they will not be prosecuted” says Tim Lynch in his introduction to this Cato panel last month. Perhaps even worse, “federal regulators and prosecutors have so much power that they can pressure people who are totally innocent into pleading guilty and paying fines.”

Discussing their experiences with agency and prosecutorial power at the panel are: Kevin Gates, Vice President, Powhatan Energy Fund, subject of a FERC investigation for vaguely defined “market manipulation”; William Yeatman, Senior Fellow at the Competitive Enterprise Institute, who studies FERC as well as other energy and environmental agencies; Lawrence Lewis, who as a building manager at a military retirement home got a criminal record after diverting a backed-up sewage system into a drain he believed fed into the sewage treatment system; and William Hurwitz, M.D., specialist in pain treatment and target of a controversial prosecution of which John Tierney wrote: “Lapses in medical judgment – or even just differences in medical judgment – have been criminalized…. All it takes is a second opinion from a jury”.

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  • As condition of bail, federal magistrate orders arrestee to recant charge of government misconduct [Eugene Volokh]
  • Possible life sentence for pot brownies shows “utterly irrational consequences of pretending drugs weigh more than they do” [Jacob Sullum, Radley Balko] Life sentence for guy who sold LSD: “the prosecutor was high-fiving [the] other attorneys” [Sullum]
  • Do low-crime small towns across America really need MRAP (mine-resistant ambush-protected) armored vehicles and other military gear, thanks to federal programs? [Balko]
  • Minnesota reforms its use of asset forfeiture [Nick Sibilla, FIRE] Rhode Island, Texas could stand to follow [Balko]
  • If not for video, would anyone believe a story about Santa Clara deputies “spiking” premises with meth after finding no illegal drugs? [Scott Greenfield]
  • Falsely accused of abuse: “He Lost 3 Years and a Child, but Got No Apology” [Michael Powell, NY Times "Gotham"; Amine Baba-Ali case]
  • Two federal judges denounce feds’ “let’s knock over a stash house” entrapment techniques as unconstitutional [Brad Heath, USA Today]

Critics of asset forfeiture have warned for years that it not only warps the priorities and incentives of law enforcement agencies, but creates a slush fund ripe for abuse by sidestepping the appropriations process. Now investigators accuse longterm Brooklyn D.A. Charles Hynes of using forfeiture funds to pay more than $200,000 to a P.R. consultant whose labors were largely devoted to advancing Hynes’s campaign. The consultant’s firm was paid more than $1 million over a decade. [New York Times]

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They wouldn’t show him the warrant because it was sealed [Bill Frezza, Forbes]:

While 30 men in SWAT attire dispatched from Homeland Security and the U.S. Fish and Wildlife Service cart away about half a million dollars of wood and guitars, seven armed agents interrogate an employee without benefit of a lawyer. The next day [Gibson Guitar CEO Henry] Juszkiewicz receives a letter warning that he cannot touch any guitar left in the plant, under threat of being charged with a separate federal offense for each “violation,” punishable by a jail term.

Up until that point Gibson had not received so much as a postcard telling the company it might be doing something wrong….

Juszkiewicz alleges [federal prosecutors] were operating at the behest of lumber unions and environmental pressure groups seeking to kill the market for lumber imports. “This case was not about conservation,” he says. “It was basically protectionism.”

Earlier on the extraordinary Gibson case here.

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And the curious thing is, they’re from prosecutors. “The prosecutors’ office replaced part-time assistant prosecutors with full-time positions in 2011. Eight of the part-time employees who were replaced sued the city for age, race and/or gender discrimination, The Kansas City Star reported. … The eight former assistant city prosecutors filed their lawsuits individually and alleged different circumstances.” [Claims Journal]

  • New insight into Shaken Baby Syndrome (SBS) casts doubt on criminal convictions [Radley Balko, earlier here, etc.]
  • “The Shadow Lengthens: The Continuing Threat of Regulation by Prosecution” [James Copland and Isaac Gorodetski, Manhattan Institute]
  • Police busts of “johns” thrill NYT’s Kristof [Jacob Sullum, earlier on the columnist]
  • Sasha Volokh series on private vs. public prisons [Volokh]
  • “Police agencies have a strong financial incentive to keep the drug war churning.” [Balko on Minnesota reporting]
  • Forfeiture: NYPD seizes innocent man’s cash, uses it to pad their pensions [Institute for Justice, Gothamist] “Utah lawmakers quietly roll back asset forfeiture reforms” [Balko] “The Top 6 Craziest Things Cops Spent Forfeiture Money On” [IJ video, YouTube]
  • After Florida trooper nabbed Miami cop for driving 120 mph+, 80 officers accessed her private info [AP]
  • “When do awful thoughts, shared with complete strangers, become criminal actions?” [Robert Kolker, New York mag]
  • Why grants to local police departments are among the federal government’s most pernicious spending [Radley Balko, whose new Washington Post blog/column is thriving]
  • How bad did you think Florida prosecutor Angela Corey was? She might be worse [Balko, earlier]
  • “The unintended consequences of compensating the exonerated” [Will Baude]
  • Thousands of Americans are behind bars following shaken-baby convictions. How many are innocent? [Jerry Mitchell, Jackson Clarion-Ledger/USA Today, earlier here, here]
  • Private probation as “judicially sanctioned extortion racket” [The Economist]
  • “DOJ to Prohibit Profiling Based on Religion, National Origin, and Gender in Federal Investigations” [FedSoc Blog]

We’ve been reporting on Standard & Poor’s contentions for a while (here, here, here), and now allegations have surfaced in a new legal filing [Politico; background from Cato's Mark Calabria]

A Tennessee defense counsel’s funny response to an opposing prosecutor’s ill-considered in limine motion asking not to be referred to as “The Government.” [Lowering the Bar]

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They appear to have gotten one very conservative San Diego judge exiled to traffic court [Will Baude]

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Ethics roundup

by Walter Olson on October 23, 2013

  • Eliciting false testimony among sins: “Ninth Circuit finds ‘textbook prosecutorial misconduct’” [Legal Ethics Forum]
  • Syracuse: jurors say insurance company lawyer observing trial got uncomfortably close [Above the Law]
  • South Carolina: “Prosecuting attorney is accused of dismissing charges in exchange for sexual favors” [ABA Journal]
  • Judge, handing down six-year sentence, calls defense lawyer’s briefing of witness a “playbook on how to lie without getting caught” [Providence Journal]
  • Kentucky high court reinstates $42 M verdict against lawyers for fleecing fen-phen clients [Point of Law] Accused of bilking clients, prominent S.C. lawyer surrenders license, pleads to mail fraud [ABA Journal]
  • Former Kansas attorney general accused of multiple professional violations: “Phill Kline is indefinitely suspended from practicing law” [Kansas City Star]
  • “Nonrefundable ‘Minimum Fee’ Is Unethical When Fired Lawyer Will Not Refund Any of It” [BNA]

Should prosecutors hype their charges for publicity value? U.S. District Court Judge Richard Sullivan (S.D.N.Y.) is scathing about a sensationally worded press release put out by the office of Manhattan U.S. Attorney Preet Bharara on bringing corruption charges against two Gotham politicos. The alternative presumably would be to save the colorful language in the name of the public until actually securing a conviction. And by contrast, Mike Koehler quotes comments by Judge Richard Leon on dismissing Africa Sting FCPA cases:

This appears to be the end of a long and sad chapter in the annals of white collar criminal enforcement. Unlike takedown day in Las Vegas, however, there will be no front page story in the New York Times or the Post for that matter tomorrow reflecting the government’s decision today to move to dismiss the charges against the remaining defendants in this case. Funny isn’t it what sells newspapers.

[FCPA Professor] More from Scott Greenfield:

According to the Law360 article, “fellow panel member and deputy U.S. Attorney for the Southern District of New York Richard B. Zabel defended the practice, saying under U.S. Department of Justice guidance, part of the reason to have a press conference or release is to explain to the public what is going on. ‘The purpose of a quote is to be quoted and draw attention to the case,’ Zabel said. “Laypeople can’t read a complaint.”

Is that not a great explanation or what?

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Beyond the preconceptions

by Walter Olson on October 8, 2013

Why a Duke lacrosse alumnus backs the Georgia Innocence Project [Fulton County Daily Report]