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?
Why a Duke lacrosse alumnus backs the Georgia Innocence Project [Fulton County Daily Report]
… when regulatory/enforcement agencies generate their own budget from fines, notes Michael Greve, reflecting on the J.P. Morgan “London Whale” settlement and other matters:
Here’s where the $920 million [from the Morgan settlement] went: OCC, $300 million; SEC, $200 million; the Fed, $200 million. (The remainder went to the British authorities.) That much money, in a single action, raises the alarming prospect of agencies that become self-funding and, moreover, profit centers for a cash-starved Congress — through their enforcement activities. Here’s the blazingly obvious problem: most of the laws on the books are stupid and, when fully enforced, would land half of us in jail and the rest of us in bankruptcy. A principal way to check that problem is the appropriations process, which limits the enforcers’ budgets (and may influence their enforcement choices, for good or ill). When the money starts flowing in the other direction, all bets are off: you’re living under a NAFI regime.
NAFI is a term of art: it means “Non-Appropriated Funds Agencies”—outfits that are part of the government but financed not through congressional appropriations but through their own operations and revolving funds. The U.S. Mint is a NAFI. So is the Federal Reserve: it finances its budget from its earnings and then kicks the rest over to the Treasury. The CFPB has strong NAFI features: it simply sends a demand letter to the Fed, telling it how much money it wants (up to a certain percentage of the Fed’s earnings—above that level, the CFPB may receive appropriations). As noted, the Fed’s earnings don’t initially go into the Treasury and therefore aren’t appropriated from it.
The Securities and Exchange Commission hasn’t reached NAFI status yet, Greve writes, but not for want of trying.
“Prosecutors claim Qwest CEO Joseph Nacchio was guilty of insider trading, and that his prosecution had nothing to do with his refusal to allow spying on his customers without the permission of the Foreign Intelligence Surveillance Court. But to this day, Nacchio insists that his prosecution was retaliation for refusing to break the law on the NSA’s behalf.” [Andrea Peterson, WaPo; earlier here, here]
Also on surveillance: “One NSA analyst was recreationally surveilling women for 5 years, until a girlfriend realized he was wiretapping her.” [Kevin Poulsen, Wired] “To boldly snoop where no snoop has snooped before” [Lowering the Bar on NSA grandiosity] No, it’s not creepy at all for the British government to put up big peeping-eyes posters to remind taxpayers they’re being watched [Telegraph last November]
My new Cato post tells how on-site feds increasingly direct big business decisions.
P.S. Related thoughts on deferred prosecution agreements from Brandon Garrett and David Zaring at NYT “DealBook.”
I just posted a few days ago about the many scandals of state police forensic labs that have been found to employ corner-cutting or shoddy methods in the course of obtaining positive identifications and convictions. What I didn’t realize is that — according to a new paper by Roger Koppl and Meghan Sacks in the journal Criminal Justice Ethics — many crime labs actually are paid by the conviction. That practice goes on in states that include Alabama, Florida, Illinois, Kentucky, Louisiana, Mississippi, New Jersey, New Mexico, North Carolina, and Virginia. If we incentivize false-positive identification, should we really be surprised when it happens? [Radley Balko]
In my new CNN.com piece I argue that we shouldn’t let anger over the Zimmerman acquittal shred the rights of criminal defendants: “awarding new powers to prosecutors will likely mean that more black people will end up behind bars.” [CNN](& Steele; thanks for Instalanche to Glenn Reynolds)
P.S. Some may wonder whether a toughening of hate crime laws might be an exception to the general rule that minorities have much to fear from a broadening of grounds for prosecution. Leaving aside whether the hate crime issue has any relation to the Martin/Zimmerman case (few lawyers believe Zimmerman could be found guilty of a hate crime, and when the FBI investigated him last summer it found no evidence of racial motivation; more on this from Michelle Meyer), per FBI statistics for 2011, blacks are actually overrepresented among persons charged with hate crimes, at 21 percent compared with 14 percent of general U.S. population.
State’s attorney Angela Corey fires the IT director who testified critically regarding the state’s non-sharing of evidence with George Zimmerman’s counsel. [Florida Times-Union] And Jacob Sullum’s latest: “Prosecutor Says George Zimmerman Is Guilty No Matter What Happened in His Fight With Trayvon Martin” [Reason]
Cy pres, public-sector style? “A veteran Manitoba Crown attorney has been fired after he dropped charges against a Winnipeg company involved in a workplace accident — only to have the company make a substantial financial donation to a charity he oversees.” The prosecutor has defended his actions on the grounds that he did not direct the donation and that “the company made its own decision to choose the charity he was connected to”; he is not alleged to have benefited from the charity. [Winnipeg Free Press]
Some locals are “stunned” that Justice would drop the River Birch case after four years of vigorous prosecution, and wonder whether there is any link to recent resignations and misconduct charges among high-level figures in the U.S. attorney’s office. [New Orleans Times-Picayune, more, earlier]
A two-part post, with part 1 on the law as applied to the facts, and part II on sentencing, prosecutorial discretion, and the appropriate targets for reformist energy. Earlier here (& Greenfield; Timothy Lee and Mike Masnick on plea bargaining).
Programmer Aaron Swartz, a founder of RSS syndication and Reddit, committed a series of trespasses and hacks at MIT so as to download millions of papers from the JSTOR academic database, possibly with the plan of making them freely available through file sharing. When caught he returned the files and JSTOR did not recommend prosecution. In September Timothy Lee wrote in Ars Technica that while there was no excuse for Swartz’s actions, it was also mystifying that federal prosecutors were going to such lengths to stack up felony counts and legal theories under the CFAA (Computer Fraud and Abuse Act) that could send the popular techie to prison for life. Now Swartz, who is known to have been afflicted by depression, is dead, a suicide at age 26. [Jonathan Blanks, Lawrence Lessig, Glenn Greenwald, Patterico interview with Swartz lawyer Elliot Peters, Scott Greenfield, Orin Kerr (disputing premise that prosecutors overcharged), Timothy Lee/WaPo]