The Criminal Lawyer

Last week, the prosecution and the defense filed their sentencing memoranda in the Rajaratnam case.  Raj was convicted of 14 counts in all — 9 counts of securities fraud, and 5 conspiracy counts.  So what do the parties think that’s worth?  The feds asked Judge Holwell to sentence Raj in the range of 19.5 to 24.5 years.  The defense didn’t make a specific request, just said it ought to be “well below” what the feds want.

So 20 years, huh?  Wow, he must have been an awful bad guy.  Must have hurt a whole lot of people, right?

After all, a mugger in a dark alley only takes one person’s wallet.  A “white-collar criminal” can steal from thousands of people — and takes not just their wallet, but their life savings!  Right?

Well, hang on.  Did Raj actually steal from anyone?  How many investors did he really harm?  And did any of them really lose enough money to warrant locking someone up till we all have flying cars and jetpacks?

Judging from the feds’ sentencing memo, you bet.  Just look at this, from the introduction:

Raj Rajaratnam’s criminal conduct was brazen, arrogant, harmful, and pervasive.  He corrupted old friends.  He corrupted subordinates.  He corrupted entire markets.  Day after day, month after month, year after year, Rajaratnam operated as a billion-dollar force of deception and corruption on Wall Street.

Wow, that sounds awful.  So the victims are… who again?

But wait, there’s more:

Rajaratnam repeatedly leveraged the power of money and his position as the head of a 7-billion dollar hedge fund to induce friends, employees, and associates to participate in his criminal activities.  Although already rich, Rajaratnam did this to drive up his personal wealth through profitable trading in his hedge fund.  He did it to make sure that investors did not pull their money out of Galleon and to attract new money to his fund.  And he did it because of his egomaniacal drive to triumph over his competitors on Wall Street.

Again, wow.  (The feds sure like their adjectives, don’t they?  Comes off a tad over-the-top, if not insulting to the intelligence.)  So he was trying to increase his wealth, gotcha.  But at whose expense?  Guess we have to read more:

That was what he cared about: money and success.  What he did not care about, at all, was the extensive harm he left in his wake: harm to the capital markets; harm to the average, ordinary investors who played by the rules; harm to the companies whose secret information was misappropriated; and harm to the lives of those he corrupted.

Well, that sounds a little more like it… but again, who was harmed, and how?

Although particular investors on the other side of Rajaratnam’s illegal trades are not easily identifiable, there should be no question that ordinary investors paid the price for Rajaratnam’s crimes and that public companies were harmed by Rajaratnam’s repeated theft of corporate secrets.

Oh for crying out loud.  Are they joking?  Stripped of its demagogical rhetoric, this translates to “We have not identified any actual victims.  But we shouldn’t have to.  It’s obvious that lots of people must have been harmed, even if we don’t know who they were.”

If they don’t know who — or even whether — anyone was actually harmed here, how in blazes do the feds justify asking for 19.5 to 24.5 years of imprisonment?  Here’s how:

[The feds want that much time because they feel it is] proportionate to the historic nature of his crimes.  He is arguably the most egregious violator of the laws against insider trading ever to be caught.  He is the modern face of illegal insider trading.

That’s it.  That’s all.  “Because this is the first time we’ve ever caught someone so red-handed,” and “because this case got so much press.”  Those are the sole reasons why they are looking to put this guy away until he dies of old age.

Really?

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For the record, we’re predicting (more…)

At the close of yesterday’s post, we talked a little about how we’re starting to see signs of opposition to the insane quantity of federal crimes.  More and more people are starting to see how bad it really is, we noted — perhaps enough some day soon to reach a tipping point that results in actual change.

It would have to be a big freaking tipping point, though, wouldn’t it?  Current attitudes are rapidly swelling the numbers of crimes, and the tide is only rising.  Idealists push for criminalization of unsavory attitudes (see hate crimes). Crusaders criminalize failure to keep up with the crusade du jour (EPA, anyone?).  Pencil-pushers criminalize failure to comply with arbitrary procedures (see any random page of the C.F.R.).  The public cries out for crimes named after children, to punish everyone for an outlier result.  And politicians ratchet up the penalties so they don’t look “soft on crime.”  Overcoming such a mass of societal attitudes is a daunting prospect.

As it happens, though, societal change may not be as impossible as all that.  Science Daily now reports on a study showing that, when just 10% of a population holds a firm belief, that belief will always be adopted by the majority of the society.

When the number of committed opinion holders is below ten percent, there is no visible progress in the spread of ideas.  It would literally take the amount of time comparable to the age of the universe for this size group to reach the majority.

But,

Once that number grows above ten percent, the idea (more…)

A few times, now, we’ve talked about how there are too many federal crimes, and how an enormous number of them are frankly unjust.  We’re just one of many voices crying out about this deep and dangerous problem.  The other day, the WSJ entered the conversation with a piece titled “Federal Offenses: As Criminal Laws Proliferate, More Are Ensnared.”  We’re not going to comment on the piece other than to say it’s well written, and worth reading.

It is certainly true that the number of federal crimes has risen rapidly in recent decades.  And it is beyond rational dispute that a growing number of these crimes are flatly unjust.

Far too many are created by regulatory bureaucrats, unbeholden to any voters, as tools for enforcement of their strictly civil rules (the proper methods of enforcement being fines and restrictions/denials of permit).  And by “far too many” we mean “all crimes created by regulatory agencies.”  Criminal law is not just some tool for rule enforcement; it is the singular means by which the awesome might of the state is brought to bear to punish those whose conduct is so bad that society demands that we take away the transgressor’s liberty, his property, his reputation, and sometimes even his life.  As an old bureau chief of ours used to say, “it is a big fucking hammer, not to be used lightly.”

Many of the federal crimes are unjust for that reason, because they do not punish conduct that society (through elected officials) requires punishment.  Far too many are also unjust because they lack any (more…)

Because we were bored out of our skull this afternoon, we checked this blog’s stats on Google Analytics.  Browsing through the various keywords people have used to find this blog over the past year, all we can say is “The hell is wrong with you people?”

Leaving aside the freaks and weirdos (and possibly some of their clients), however, it seems that most people find this blog by asking Google the same handful of questions.  The number one search engine query that get people here, every month this year, is something along the lines of “why become a lawyer.”  Number two includes variations on a theme of “can a cop lie about whether he’s a cop.”  The top five are rounded out by queries about what crimes Goldman Sachs may have committed, connections between Adam Smith and insider trading, and what one should say to a judge at sentencing.

We’re not sure that we’ve actually discussed all of these topics here.  Then again, we might have, and just forgot it (which is a distinct possibility — these posts are all written in a single pass, without any real editing, and usually are not given another thought once they’re posted.  If you ever wondered what “ephemera” meant, you’re looking at it right now.)

Still, in the interests of alleviating our boredom public service, here are some quick answers to our readers’ most pressing questions:

1. Why Should You Become a Lawyer?

Because you feel a calling to serve others.  Because you want to make a difference in the lives of others.  Because you are genuinely interested in the rules by which human society functions, why people behave the way they do, and the policies and interests underlying it all.  If those are your reasons, then you belong.

Not because you want to (more…)

Looks like there’s going to be more work for defense lawyers, and that’s a real shame.

Hey, we like working as much as the next guy, but we’d rather have a lower crime rate.  After Obama’s little press conference yesterday, though, we can’t help but think that the crime rate is going to go up.  Because the economy is going to continue to suck.

Of course there’s a whole lot more to crime rates than just the economy.  The gang crimes of the crack epidemic flourished during boom years, after all, driven not by poverty but by the turf battles and growing pains of an exciting new industry, like a dot-com bubble with guns instead of IPOs.  While wages were rising in the 50s, the crime rate was rising twice as fast.  And a tanking economy does not always coincide with rising crime rates — they dropped about a third during the Great Depression.

Demographics are a much larger factor, especially in violent crimes, which surge and recede with the unmarried young male population.  That population is responsible for about half of all crimes that get committed.  Cultural attitudes also play a big role — different communities of our wonderfully heterogeneous country can have markedly different views of what is right and wrong, and what is tolerable in others — so that population shifts and evolving community attitudes bring about noticeable drops or rises in local crime rates.

But although the economy is not the biggest factor, it still does have an effect on crime rates.  Financial crimes seem to bloom in downturns, partly out of reckless desperation, and partly because frauds are easier to conceal when everything is going up.  It also affects violent crimes committed by people other than the young-male demographic, for whom economic stress can lead to domestic strife.  For some of those feeling the lack of opportunity the most, opportunistic crimes lose some stigma and are more likely to be seen as options.

It would be foolish to claim any cause and effect between a down economy and the crime rate.  But a down economy — especially a long-term downturn — certainly amplifies the effects of more direct factors like demographics.

Well, the at-risk demographics have been swelling for a few years now, and we’re starting to see an effect on the statistics.  It’s likely that critical mass has been reached, or will be fairly soon.  Cultural shifts work in both directions, but in recent years they’ve been balancing out in favor of less, not more, homogeneity.  (It’s not that particular communities are more or less likely to commit crimes; it’s just that greater cultural diversity correlates strongly with deviation from the singular norm of the law.)  The amplifying effect of a long-term crap economy is most likely to be significant in precisely these circumstances.

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So why do we think the economy’s going to stay down for a while?  Because it’s the message the Obama administration has been sending lately.  What the president said after yesterday’s gloomy jobs report only solidified this impression.

The news was (more…)

This morning’s WSJ has a short article with a long headline, “Manhattan DA Is Put on Defensive: Vance’s about-face on bail in sexual-assault case follows two high-profile court defeats for office.”  The blurb from the website’s front page summarizes the story pithily: “The newly surfaced problems in the sexual-assault prosecution against Strauss-Kahn represent the latest of several recent high-profile setbacks for Manhattan District Attorney Cyrus Vance Jr.”

We’re a proud alum of the office, but lately the office has had a different vibe, one that make us less proud.  Outside the investigative division, which so far as we can tell has remained as professional as ever, there seems to be a distinct shift away from the higher standards of the Morgenthau office towards those of lesser offices.  Although it hasn’t gone quote the way of, say, Nassau County, the change has been clearly noticeable.

In this morning’s article, the DA’s spokeperson tried to defend the office’s handling of the Strauss-Kahn case.  In doing so, she made a key statement that seems to explain what’s going wrong:

“At every step of the way, the district attorney’s office made the right decisions. We pursued an account of a sexual assault that was corroborated by witnesses, electronic evidence and DNA evidence. That evidence was more than enough to present to a grand jury, which indicted the defendant. After the indictment, the district attorney made clear that the investigation would continue and prosecutors would take the case wherever the facts led. Today, we did just that.”

This is a defense?  Cy, if you’re reading this, that statement is an indictment of your office, not a defense.

First of all, if you only have enough evidence for an indictment, you don’t seek an indictment.  We were trained not to write up a case unless it was one we were confident we could prove beyond a reasonable doubt at trial.  The evidence sufficient to obtain an indictment is laughingly slim — one only needs to convince a bare majority of the grand jury that it’s probably more likely than not that the crime could have happened, on the barest evidence that has not been tested or challenged in any way.  If the best you can say of your evidence is that is is “enough to present to a grand jury,” then you need to keep investigating.

Second, “after the indictment, the district attorney made clear that the investigation would continue and prosecutors would take the case wherever the facts led?” Are you shitting us?  You mean you sought an indictment before you’d even completed your investigation?  That’s the kind of amateurish, shoot-first-and-ask-questions-later approach we’ve come to expect of the embarrassingly bad DA’s offices.  It’s not what the Manhattan DA’s office is supposed to do.  No, you’re supposed to complete your investigation first, and only then seek an indictment.  You don’t go to the grand jury until (1) the investigation is complete, (2) the investigation has convinced you that the suspect is guilty and that you can prove this guilt beyond a reasonable doubt at trial, and (3) you’ve made a policy determination that prosecution is the right thing to do in this case.  Ideally, but not required, one also (4) presents the opportunity for a pre-indictment plea, which in our experience often leads to discussions that can shut down a misguided prosecution before it’s gone too far.

We’ve certainly seen more of this reckless prosecution lately, and it’s never been to the credit of the office.  Each time, it’s only made the office look worse.  And we’re not the only ones noticing.  When we speak with other defense colleagues about this, almost all are in agreement that this change under Vance has only damaged the office’s reputation.

It’s a shame for the office, of which we would like to remain proud.  It’s a shame for Vance, whom we genuinely like and want to see succeed.  But it’s worse than shameful to shoot from the hip like this, trying to score points at the expense of the lives of real people.

Bill Otis, a former AUSA and now an adjunct at Georgetown Law, had a piece earlier this month in the Federalist Society’s magazine Engage titled “The Slow, Sad Swoon of the Sentencing Suggestions.”  His article opens with the sentence “The Guidelines are a lost cause.”  We were in total agreement so far.  But by the next sentence, he’d lost us.

It’s a good article, don’t get us wrong, and well worth reading.  But Prof. Otis’ main point is that the Guidelines stopped being useful after Booker made them optional.  He’d prefer to completely do away with them, but only to replace them with more stringent rules that remove most of the discretion judges now have in sentencing.  We cannot agree.

The Guidelines were enacted back in 1987 largely in response to a perception that sentencing was too unpredictable.  For any given crime, Judge A might give three years in prison while Judge B might give only one.  Or Defendant X might get prison while Defendant Y only got probation.  The Guidelines corrected that by removing much of the discretion judges had.  For a given offense, and a given criminal history, there was a range of permissible definite sentences that could be imposed.  Some discretion was allowed for slight downward or upward departures to different ranges.  Less discretion was allowed for variances, sentences that rejected the Guidelines as inappropriate.  Needless to say, judges hated this loss of discretion from day one.  The Guidelines were not mere guidelines, but strict rules.  It stayed that way until the 2005 Booker decision restored them to the general rule-of-thumb they were meant to be.

Now, the Guidelines are still important at sentencing.  Everyone uses them, everyone applies them.  Now, however, once the appropriate Guideline range has been calculated, there is more room for advocacy to seek a different sentence, and judges are able to consider different sentences on a case-by-case basis.

Some, like Otis, decry this as a return to the unpredictable bad old days, where one’s sentence varied based on the “luck of the draw” of which judge one happened to have.  Others praise it as a movement towards greater individual justice.

The division here is deep, a seemingly irreconcilable difference of core principles of what criminal justice is supposed to do.

On the one hand, you have those who want predictability, uniformity and consistency.  If stealing $50,000 is worth five years (or whatever), then it’s worth five years.  What’s important is the crime, not the criminal.  If society knows that a given crime gets you a given sentence, then the law has a more deterrent effect.  The penalty works to prevent more of the same crime, and society benefits.  Taking into account such variables as the thief’s personal circumstances or the judge’s gut feeling that this wasn’t such a big deal — or conversely variables such as the relative harm suffered by the particular victim or the judge’s gut feeling that this was worse than usual — makes for an unpredictable world where nobody knows what a given crime is worth.  Without predictability, the law loses its deterrent effect.  Society suffers.  The purposes of punishment that are most important to this group are retribution — a given crime is worth a given penalty — and general deterrence.

On the other hand, you have those who want individualized sentencing.  Make the punishment fit the criminal, not the crime.  Justice is not what happens on average, it is what happens to this individual standing right here right now.  And even general deterrence is achieved not by specific sentences, but by the general awareness that some punishment is going to happen.  The uncertainty of what that penalty might be doesn’t lessen the deterrent effect of this awareness.  And the retributive aspect of punishment must be proportional to be just.  A one-year sentence might be devastating to the life of a middle-class college grad whose career will be ended, whose reputation in his relevant community will be destroyed, and who will suffer the consequences deeply for the rest of his life.  That same one-year sentence might be a walk in the park (or as one of our clients once put it, “a nice vacation”) with little or none of the devastation suffered by the other.  Justice demands that individual differences be taken into account.  And that demands that judges be given the discretion to do so.

These two positions — general justice vs. individual justice — are usually irreconcilable because they use the same words to mean different things.  They can’t even begin a discussion because they’re arguing from core principles that don’t correspond.

But beyond that, those who value general consistency over individual appropriateness miss the entire point of our criminal justice system.  The whole point is to ensure (more…)

Too many people are in jail.  The rate of incarceration is just going up and up.  Is it doing any good?

If you look at the two graphs above, you’ll see that the prison population in the United States has soared, while the amount of violent crime has plummeted.  The prison population of 1.5 million is about triple what it was in 1980.  Meanwhile, according to the DOJ’s figures, violent crime is about a third of what it was in 1980.  It’s an uncanny correspondence, that incarceration has tripled while violence has thirded (yes, that’s a real word).

Some people look at this and say there’s an inherent absurdity, an inherent injustice, that even though crime is down jailings are up.  Others say it’s obvious that, if you jail the people who commit crimes, they’re not going to be walking around to commit as many crimes.  One sees a paradox, the other sees causation.  (These are not straw men, by the way.  These positions have been taken on the pages of the New York Times and the Wall Street Journal, among others.)

There really isn’t any paradox, of course.  It’s not like more people are being imprisoned than there are crimes being committed.  Last we heard, everyone in prison was convicted of something.

What’s going on here is that more and more convictions are resulting in incarceration.  Crime may be down, but the proportion of crimes you’re likely to go to jail for is way up.

Nonviolent crimes, in particular, are far more likely to get you a jail sentence these days.  Since about the start of the Clinton administration, the number of different kinds of nonviolent offenses has skyrocketed.  And drug crimes have been a growing proportion since the Reagan years.

Several factors are involved in this dramatic increase in prison for nonviolent offenses.  One is a dramatic increase in regulatory violations that have been criminalized.  Regulatory agencies have started using criminal law as a tool — a tool that is wrong for the job, and one they are ill-equipped to use.  Voluminous regulations are created to micromanage how people can live their lives and operate their businesses.  Fines, denial of permits, and other civil penalties are the normal and appropriate method for enforcing compliance with all the regulations.  But over the past generation, regulators have become emboldened to impose criminal penalties for violations of their rules.

These regulations are rarely drafted by anyone who has the slightest clue of what criminal law is, why it exists, and how it works.  So they tend to leave out little things like mens rea.  Everything’s a strict-liability crime with them. In the regulatory world, simple mistakes are indistinguishable from deliberate transgressions.  When the penalty is denial of a permit, that’s not a problem.  But when the penalty is prison, it’s a big problem.  And everything’s a federal offense, which almost always means a felony.  Instead of, you know, regulating conduct, the regulators use the criminal law to keep the unruly masses in line.  And more people face prison as a result.

Another factor is the elected politicians’ desire to look “tough on crime.”  Which results in a steady ratcheting-up of sentencing for existing crimes, as we’ve discussed before.

It also results in the creation of new crimes, harsher statutes to deal with the public outcry of the moment, like crack or hate crimes or insider trading or what have you.  These new offenses are rarely necessary, as existing laws tend to already punish the conduct.  But the new ones often carry greater minimum sentences, and that’s the whole point.  So more people are facing prison, and for longer stretches of time, than before.

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The situation is getting out of hand.  It’s gotten to the point where small corrections aren’t going to cut it.  Drastic measures would be needed.  And drastic measures being, you know, drastic and all, they’re not likely to be undertaken any time soon.

But let’s say we’ve got a genie who’s offered to grant us three wishes here.  What would they be?

Wish one would be (more…)

We rag on Attorney General Eric Holder from time to time on this blog.  For good reason — he’s been something of an idiot on profiling, miranda, terrorism, etc..  But today he did something praiseworthy, and we’d be out of line if we didn’t say so.

Last August, Obama signed the Fair Sentencing Act.  Although it does have some significant drawbacks, such as actually increasing sentencing for some defendants, the main intent was to try to reduce the insane disparity in federal sentencing for crack cocaine and powder cocaine.

The problem was, this reduction in the sentencing guidelines was not retroactive.  It only applied to future cases.  People already in prison for crack — even though everyone now agrees their sentences are too long — would have to suck it up and stick it out.

But today, AG Holder testified before the US Sentencing Commission, and told them the new lower sentences should be applied retroactively.  ”As years of experience and study have shown, there is simply no just or logical reason why their punishments should be dramatically more severe than those of other cocaine offenders,” he said.

Yes.  He is, for once, right.

Of course, even when he’s right he can’t help being wrong.  Holder wouldn’t let the lower sentences be retroactive if the inmate happened to have a gun at the time of the crime.  Or if the inmate had a “significant” criminal history.  Apparently, crack really is something that should be sentenced more harshly if you’ve gotten caught possessing or selling it before.  There’s no internal logic here, no principle that supports this.  If crack crimes are not more serious than equivalent powder crimes, then what justifies enhancing crack but not powder sentences if these other factors exist?  Holder’s being disingenuous, trying to appease both the reformers and the “try to look tough on crime” legislators, instead of actually being true to his principles.  If he has any.

Still, although he’d be more correct to seek retroactive application across the board, he’s at least doing something right in seeking some retroactivity at all.  So here’s some polite golf applause for Eric Holder.

It’s rare that we agree with a NY Times editorial.  Yesterday, we came close.  In a blurb titled “Recidivism’s High Cost and a Way to Cut It,” the editors said one solution to the high cost of imprisoning repeat offenders would be to adopt what Oregon’s doing, in letting its parole officers use programs and other alternatives to jail for lesser violations.

Ooh, so close.

Two problems: One, most of those who return to prison aren’t coming back on a parole violation, they’re going in because they got convicted of a whole new crime.  Yes, far too many parolees get put back in for non-criminal stuff like failing to abide by arbitrary and asshole-ish conditions imposed by dickhead parole officers.  But this doesn’t account for much of the actual recidivism numbers.  So dealing with this isn’t going to make too big a dent in the repeat prison population.

Two, the people making the decision are still going to be the same parole boards, parole officers, and parole magistrates who are acting like assholes and dickheads in the first place.  (These are obscure legal terms of art, perhaps obscure to those who do not practice criminal law.  To any non-lawyers reading this, we believe the common expression would be something akin to “unthinking, tyrannical bullies.”)  The problem people are the ones who are so jaded by dealing with scumbag after scumbag that they are incapable of recognizing a deserving parolee when they see one; or they are so stupid that they are incapable of reasoned discretion and cling to rote practices like a drowning man clutching a lifeline; or they are such villains that they derive satisfaction from fucking people over; or they are so righteous that they believe they are doing the right thing in fucking people over.  Whichever variety you’re dealing with, they either abuse their discretion or fail to use their discretion in the first place.  So giving them more discretion isn’t going to solve anything.

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So okay, the NYT oversimplified, missed the real point, and offered a useless suggestion.  Who cares, that’s what they always do.  But this is The Criminal Lawyer, you’re saying to yourself.  What do we suggest?

The biggest problem is really out of the hands of the criminal justice system.  It’s people who (more…)

When we were just starting out in the law, we frankly had no problem with the concept of profiling.  Not racial profiling — that’s just a logical absurdity along the lines of “most people who commit crime X are of race Y, therefore it’s reasonable to suspect people of race Y of committing crime X.”  We’re talking about profiling as the concept that a significant number of people who commit crime X exhibit the combination of traits A, B and C, which is a combination rarely encountered otherwise, and therefore if one were to look for people exhibiting traits A, B and C, then one might have a better chance of catching someone guilty of crime X.

Intuitively, this sounds reasonable.  If we were to know, for example, that certain serial arsonists are motivated by a sexual mania, that these arsonists tend to remain near the scene to masturbate or so they can masturbate to the memory later, that they tend to have spotty work and relationship histories, and that they tend to have crappy cars — well then, there’s nothing wrong in letting the cops scan the crowd of spectators at a fire, question any who seem to be getting a kick out of it, and investigate those who are single, unemployed, and drive a beater.  (This is an actual profile, by the way.  We didn’t make this up.)

And emotionally, profiling sounds wonderful.  Catching a psychopath is often difficult, because they don’t play by the same rules as the rest of us.  Wouldn’t it be nice if there were some, er, rules that we could follow — a formula of some kind — that would make it easier to identify and catch them?

As we said, in our early years we thought this was a great concept.  Whenever we encountered some findings that certain traits had been identified with this type of serial killer, or that type of terrorist, we thought it was fantastic.  But we didn’t think too critically about it.  And for sure we never bothered to look for the underlying data, much less examine the methodology used to determine how strongly these traits correlated with perpetrators of that crime.

The problem is, nobody else was doing that, either.

Profiling only works if the profile is accurate.  That should go without saying.  But it has become plain over the years that the various profiles out there are not accurate.  They are not based on actual data, but instead only on anecdotes.  (And as we like to say, the plural of “anecdote” is not “data.”)  Nor are these profiles based on any significant sample size.  No profiling study ever did even a simple regression analysis to determine whether any particular trait happens to be a meaningful variable.

We figured this out soon enough, of course.  After our first couple of years with the DA’s office, we were already joking about the silliness of profiles.  It was almost a party game to figure out which psychopathic profile we and our friends happened to fit (secure in the knowledge that hardly any of us were really psychopaths).

And the rest of the world soon caught on.  The Onion did a piece entitled “Crime Reporter Finds Way of Linking Warehouse Fire to Depraved Sex Act.”  Malcolm Gladwell wrote an outstanding piece in 2007 called “Dangerous Minds: Criminal Profiling Made Easy,” in which he solidly debunked the whole profiling scam, showing how there’s no science or statistics behind it, and even the data it’s based on is mostly useless.

It’s now fairly common knowledge that criminal profiling is about as useful as a Tarot deck.  So of course the FBI has stopped using it, right?

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Wrong.

As a matter of fact, they’re expanding!  Just as the feds have (disastrously) tried to use street-crime investigative techniques like wiretaps to go after white-collar offenders, they are now (equally idiotically) starting to use criminal profiling to go after people for white-collar offenses.

Matthew Goldstein wrote an excellent piece on this for Reuters this week, called “From Hannibal Lecter to Bernie Madoff: FBI profilers famous for tracking serial killers are turning their attention to white collar felons.”  This (and the Gladwell piece linked to above) should be required reading for any white-collar defense lawyer now practicing.  When the Galleon case first came down, we were one of a handful of people doing white-collar defense who also had plenty of wiretap experience; now, of course, more of us are learning it the hard way.  Hopefully, with this new profiling issue, more of us will be prepared to deal with it ahead of time.  (And perhaps even nip it in the bud.  Like Barney Fife, we’re a big fan of bud-nipping.)

The agents in the FBI’s Behavioral Analysis Unit are the ones who profile serial killers and the like.  ”The hope is,” reports Goldstein, that they “can get into the minds of fraudsters and see what makes them tick.”

“This originally started out as an attempt to find a way to prevent and detect Ponzi schemes,” said Peter Grupe, the FBI’s assistant special agent in New York in charge of white collar investigations.  ”But it developed into (more…)

Our jury’s still out, and there’s so much stuff to catch up on.  There’s the 5th Circuit’s denial of Jeff Skilling’s appeal, even though the Supreme Court had struck down the “honest services fraud” charge last summer.  We were so ready to write something about it yesterday, but work intervened, and now we’re not in the mood.  Maybe this weekend.

Instead, we’re all intrigued about the Senate hearings earlier this week on whether federal law enforcement ought to get a warrant before doing any search and seizure out there in the cloud.  Apparently, the Obama administration says the warrant requirement is just too much of a hassle.

The term “cloud computing” covers a lot of things, but for these purposes we’re talking about people storing data not on their own hard drives, but out there somewhere in the ether of the internet.  Of course, “out there somewhere” means “stored on someone else’s servers.”  Which means it’s there for the taking (or destruction) if those remote servers were to be compromised.  And of course, that means it’s out there for the seeing if law enforcement decides to go poking around in the cloud.

As the law currently stands, if an email is more than 180 days old, the feds are allowed to snag it without a warrant, under the 1986 Electronic Communications Privacy Act.  In yet another bit of Orwellian fractal weirdness, the ECPA was designed to ensure that online communications had just as much privacy protection as anything in the offline world.  (Given the erosion of Fourth Amendment protections in the brick-and-mortar world, a cynic might be tempted to crack that the ECPA has lived up to its expectations.)

As Vermont senator Patrick Leahy put it last September, when the Senate first starting considering changes to the ECPA, the statute

was a careful, bipartisan law designed in part to protect electronic communications from real-time monitoring or interception by the Government, as emails were being delivered and from searches when these communications were stored electronically. At the time, ECPA was a cutting-edge piece of legislation. But, the many advances in communication technologies since have outpaced the privacy protections that Congress put in place.

Today, ECPA is a law that is often hampered by conflicting privacy standards that create uncertainty and confusion for law enforcement, the business community and American consumers.

For example, the content of a single e-mail could be subject to as many as four different levels of privacy protections under ECPA, depending on where it is stored, and when it is sent. There are also no clear standards under that law for how and under what circumstances the Government can access cell phone, or other mobile location information when investigating crime or national security matters. In addition, the growing popularity of social networking sites, such as Facebook and MySpace, present new privacy challenges that were not envisioned when ECPA was passed.

Simply put, the times have changed, and so ECPA must be updated to keep up with the times

Think of it this way:  You’re storing your emails on a third party’s servers.  Isn’t there some lessening of your privacy expectations in that situation?  And on top of that, until maybe six or seven years ago, it wasn’t that outrageous to deem emails left on a third party’s servers for more than six months — instead of storing them to one’s own hard drive or local server for preservation — to be “abandoned.”  AOL users lost their emails after just a month or so.  If you didn’t actively save it to your hard drive, you didn’t want it.  (Forget, of course, the user’s reasonable expectation that the email would no longer exist in the first place.  Do not waste brain cells wondering whether one can abandon something that one believes to have already been destroyed.)

The point is, the law sort of made sense back in the 80s.  And it still kinda made sense when Google was new and Facebook was still in the future.

But now, things have changed.  In ways that are both dramatic and obvious to anyone who might be reading this post.  Now, by default, the vast majority of users do not store their emails locally (if they even know how to do so).  Emails are almost always accessed through a third party’s servers.  Almost nobody downloads their emails — and even if they do, the original remains on the server.

The vast majority of users expect that their emails, protected by their usernames and passwords, will remain private.  Even though the emails are stored out there in the cloud, the ordinary reasonable expectation is that they are private.

As we all know, the Fourth Amendment prohibits the search and seizure of stuff where there is a reasonable expectation of privacy, unless law enforcement gets a warrant based on a showing of probable cause to believe that particular evidence of a particular crime will be discovered by the search.  (For those of you desiring a quick primer on the various exceptions that apply, you can certainly do worse than to listen to N. Burney and G. Mehler’s brilliant CLE lecture, “Search and Seizure in 60 Minutes“)

The exceptions to the Fourth Amendment essentially boil down to situations where the evidence would cease to exist if a warrant were sought, or there’s some other thing we want the police to be able to do (such as make sure people are safe) that might be deterred if they weren’t allowed to use evidence observed in the process.  None of the exceptions are based on a policy of “we probably wouldn’t have probable cause to search in the first place.”

But that is precisely the policy offered by the Obama administration this week.  We kid you not.  Here’s associate deputy attorney general James A. Baker, testifying on why the administration doesn’t want to have to get a warrant to search the cloud:

In order to obtain a search warrant for a particular e-mail account, law enforcement has to establish probable cause to believe that evidence will be found in that particular account. In some cases, this link can be hard to establish.

And if they aren’t allowed to search in cases where they cannot establish probable cause in the first place?  The consequences would be dire, he (more…)

So on Thursday the WSJ reported that the Obama administration has changed the rules of investigating terror suspects, to permit interrogation without Miranda warnings in certain circumstances:

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

We made a few notes, hoping to get a minute to blog on the issue.  It just struck us as a stupid and unnecessary thing to do, if prevention of terrorist acts is the goal.  Miranda is just a protection affecting evidence that can be used at the trial of the person being interrogated.  That has to do with evidence of past crimes; it’s irrelevant to the prevention of future acts.  And if the goal is to gather evidence for a criminal trial, then it’s just unconstitutional.  It’s stupid no matter which way you look at it.  But our current never-ending trial is demanding pretty much every waking moment, and nothing got written.

Then yesterday the NYT published the text of the October 2010 FBI memo.  The relevant paragraph provides that:

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.

At the words “prompt presentment,” we (figuratively) slapped our forehead.  It all came back to us.  In May 2010, when the Obama administration first floated the idea, (more…)

Some of those who lost limbs as punishment for not killing their own families and joining Taylor's army.

We started yet another trial this week, and it’s looking like it will continue into the first week of April.  Not our longest trial ever, but fairly lengthy for a state case.  But at least it’ll be over before the trial of Raj Rajaratnam, which also began this week, and which is expected to last through the beginning of May.

But these are nothing compared to the trial of Charles Taylor, former head of Liberia.  This is the same guy who ran for election with the campaign slogan (not making this up): “He killed my ma / He killed my pa /But I will vote for him.”  Probably a thinly-veiled threat that those who didn’t vote for him would get the same treatment.

Taylor first came to prominence in 1980, when he took part in the coup led by Samuel Doe.  Whose government he soon ripped off in a massive embezzlement scheme.  He fled to the U.S., got picked up and thrown in prison, and made a daring prison escape before he could be extradited in 1985.  He high-tailed it to Libya and the protection of Muammar Gaddaffi, and went through some terrorist training camps.

With funding from Gaddaffi, he organized a rebellion against the Liberian government in 1989.  The civil war would rage for seven years, utterly destroying the country.  Slaughter, fear and lawlessness made Liberia the classic “failed state.”  There was no government, only destruction.  (A State Department official we knew at the time said it was no good trying to reach anyone in charge there.  ”The phone’s just going to ring and ring, because there’s probably bullets flying through the office and they’re hiding under their desks.”)  The word “horrifying” doesn’t begin to describe what was going on throughout the ’90s there.

In 1997, Liberians elected him president in the vain hopes that this would avoid any more civil war.  But within two years, it was raging again.

But none of this is what he got in trouble for.

Apparently, Liberia wasn’t exciting enough, so he got involved in the horrors over in Sierra Leone.   During his own civil war, Taylor took advantage of Sierra Leone’s instability to found a rebel group (funded with Sierra Leone diamonds, and manned with conscripted children) to launch a civil war in Sierra Leone.  Because the government there was so corrupt, it had no real resources, and there was pretty much no economy.  So they couldn’t really fight back.  Still, they wound up having their own brutal civil war throughout the 90s.  A large Nigerian-led UN force finally intervened and restored peace, finally disarming the rebels in 2004.

Meanwhile, the Special Court for Sierra Leone managed to file an indictment against Charles Taylor for war crimes and crimes against humanity, based on what he did in Sierra Leone.

He was indicted in 2003.

His trial just ended today.

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Even if you take into account the fact that he hid out in Nigeria until finally being arraigned in 2006, and the fact that the trial proceedings themselves didn’t really begin until 2007, we’re still talking a four-year trial.  That’s a long time to hear a case.

And the trial isn’t really technically over, anyway.  Just the evidentiary part is over.  The judges are going to take the next several months before rendering their verdict.

This thing ain’t ever going to end.

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Whether he’s guilty or not — and we haven’t seen the actual (more…)

Back in the infancy of this blog, we wrote a piece called “No More Google Mistrials: A proposal for courts to adapt to modern life.”  In it, we lamented that our jurisprudence hadn’t caught up with the realities of the internet age, and that mistrials were still being called whenever jurors got caught looking stuff up online.  We pointed out that it wasn’t exactly a new phenomenon — people had been Googling stuff for years — so it was high time the courts got caught up.

Amazingly, this post seems to have escaped the notice of the “they” who make up the rules of how a trial is to proceed.  Heavens forfend, but it might even be possible that a number of judges may never have even heard mention of it.  Stranger things have happened, though we can’t think of any offhand.

Be that as it may, the internet is forever, and it seems to get read from time to time.  Mainly by members of the press, it appears, and usually right after yet another Google mistrial has been declared.  That’s when we seem to field calls about it, anyway.

And that’s what happened earlier this week.  We were on our way to handle a case out in the rust belt, and were driving past Wilkes-Barre, Pennsylvania (a town near and dear to our heart ever since we landed a small plane there in a freakishly windy day back in our teens, a simple refueling that wound up involving the National Guard, a mistaken identity, extremely obliging air traffic controllers, and an absurd amount of adrenaline — though that’s a story for another time).  When we happened to get a call from a reporter right there in Wilkes-Barre, calling to discuss a Google mistrial that had just happened there.  (You can read the resulting article here.)

We basically said the same things in the interview as we’d written a couple of years ago, which is news enough right there.  Our opinions and positions do tend to evolve as we learn new facts or new ways of looking at old facts, so it was a nice surprise to read our old blog post for the first time since we’d written it and find that it’s pretty much what we’d just said.

But on second thought, we actually said some new stuff in this interview.  Some new policy considerations came to mind.  The reporter gets the credit for this, because unlike most reporters who just want a quick sound bite so they can get back to banging out their story by deadline, this reporter debated us.  She flatly challenged our position, saying that few if any would agree with us, and demanding that we defend it.  It was a pretty skillful interview.  Pity none of the good stuff made it into the article.  We blame the editors, of course.

So for the benefit of those who have bothered to read this far, here’s the good stuff:

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We don’t want jurors going out and (more…)