Articles Posted in Criminal cases

I’ve made my living the past three decades plus representing people charged in federal criminal cases, mostly here in Atlanta.  The news the past couple of days has been dominated by three other federal criminal matters, the case in Virginia against Paul Manafort (as I’ve mentioned previously, this man is in an unfortunate situation but has a great first name), the guilty plea yesterday by attorney Michael Cohen, and the sentencing hearing a few hours ago where the Judge imposed 63 months on the unfortunately named Reality Winner for releasing secret information to a news organization.

The internet has gone wild over the jury trial and partial verdict involving Mr. Manafort, and anyone who has wasted time reading this blog knows about federal sentencing hearings and trials, and likely understands that Manafort’s sentence can be calculated as if he was found guilty of all the charges.  That’s right troops, the hung jury on 10 of the crimes makes no difference because under the foolish experiment called the Sentencing Guidelines the Judge can sentence Paul based on conduct that he was even found not guilty of committing!  I remember a case I handled around 20 years ago where I won most of the charges but the prosecutor, referring to the rule authorizing use of acquitted conduct, asked for a much longer sentence.  The judge agreed with me, pointing out that Mr. Kish “cheated them fair and square at trial.” That Judge always made me laugh, at least until he ruled against me or gave my client a lengthy sentence.  Continue reading

Like me here in Atlanta, criminal defense lawyers around the country are probably reading about the federal criminal trial involving Paul Manafort (guy with a great first name), the former Campaign Chairman in the last Presidential election.  And like me, lawyers and laypersons alike are wondering about the impact of the evidence and witnesses on the jury.  This made me reflect on what I have learned after trying around 100 criminal jury trials in both federal and state courts during my career.

To begin with, there is a huge difference depending on whether the criminal case is in state court or in the federal arena.  State cases are generally creatures of the county in which the crime happened.  For the most part (unless a statewide agency such as the Medicaid Fraud Control Unit, or “MFCU”, is involved) the case is brought by the county’s District Attorney.  As a general rule, trials have to be in the county where the crime happened.  The jurors only come from that single county, whether it is a huge place like Fulton or Dekalb, or a small rural county far from a large city.  This means that in the smaller counties the jurors often know of or have heard something about either the crime, the Defendant, or some of the attorneys. Federal criminal cases, on the other hand, are handled by “Districts.”  Georgia has three separate federal judicial Districts, Northern, Middle and Southern.  Atlanta is in the Northern District, and there are then four “Divisions”: Gainesville, Rome, Atlanta and Newnan.  Jurors come from the counties in each Division, but that can mean jurors in DeKalb will sit with jurors from Rockdale all on an Atlanta Division case in the Northern District.  The bottom line is that federal jurors came from a wider array of locations and backgrounds.

Another distinction is the method used for selecting jurors.  We lawyers call this “voir dire“, which are supposedly old English words but others claim the expression comes from Latin. Essentially, voir dire is a process by which both sides get to question prospective jurors to see if one side wants to exclude that person from sitting on the jury.  Depending on the jurisdiction, each side gets a certain number of “strikes”, meaning that they can knock that number of people out of consideration for being on the jury.  The questioning involved in voir dire in a state criminal trial is much different than what happens in federal court.  State judges tend to let the lawyers have free reign, asking a wide variety of questions of each individual juror who is up for consideration.  Federal court is much more restricted, and sometimes the Judges won’t let the lawyer ask any questions at all, the Judge will handle all the juror questioning.  As a result, federal jury selection often happens in a matter of hours, while the state counterpart often takes days.

I have tried around 100 federal criminal cases here in Atlanta over my 35 year career. A recent report from the National Association of Criminal Defense Lawyers (“NACDL”) demonstrates that trials in federal criminal cases are almost “extinct.”  The report shows that a mere 3% of Defendants take their cases to trial, mostly because of the mismatch in bargaining position between the defense and the prosecution.   Some people want to react to this by saying” Why have trials for guilty people anyway?” For those who might have such a reaction, I can only hope that it is never you or your family who finds themselves facing a federal investigation or prosecution.  Furthermore, if we think it through a little bit, we will see that letting the prosecution have excess power, resulting in virtually no trials, is almost like the situation that led to the enactment of the Endangered Species Act. 

For starters, everybody is entitled to a trial on criminal charges, it says so right in the Sixth Amendment.  However, the almost unmatched power of federal prosecutors brought about by various statutes enacted by Congress, along with the draconian Sentencing Guidelines, means that even innocent people are now pleading guilty.  The report sets out what I already know, those who plead guilty get far less punishment.  The report notes two seemingly equal Defendants, one who “flipped” and cooperated against the other who went to trial.  You guessed it, the flipper gets a couple of years, the Defendant who had the gall to assert his Constitutional right to trial got 45 years! My own recent experience is the same, my client got ten years while the far more culpable co-Defendant who pled guilty and testified got a mere 24 months!

The NACDL report concluded that guilty pleas have replaced trials because anyone who exercises his or her right to take the case to a jury is facing “exponentially higher sentences.” Defense lawyers and prosecutors now spend most of their time “negotiating”.  Judges rarely preside over trials, and therefore have no or very little experience when such a case comes before them.  However, when just about every case ends after a long negotiation instead of a public trial, we all lose.  The public no longer sees the facts of a case.  Prosecutors no longer have to prove their allegations beyond a reasonable doubt.  And, most importantly, some clearly innocent people will “take a plea” instead of taking the chance that their life will be ruined by an excessively long sentence.  Like the Endangered Species Act, we need a new law to prevent the extinction of the right to trial.

All lawyers need to keep up with their reading, and criminal defense attorneys are no different.  I’ve been plowing through recent federal criminal cases, and came across three (not from the Atlanta area) that deal with the financial aspects of a federal criminal sentence.  Each sort of reminds me of the Ojay’s song, “For the Love of Money”  with that great refrain, “Money Money Money Money, MONEY!”

OK, class, let’s remember the basics.  A federal criminal sentencing hearing involves more than just the amount of time a person might have to go to prison.  A federal judge can also impose three distinct types of financial orders that require payment.  First there is a “fine”, which usually can be up to $250,000 per count, this money is considered “punishment” and the payment goes directly to Uncle Sam.  Next, there is “restitution”.  This is supposed to pay back victims any loss they suffered from the crime, and while the Defendant pays this money to the Clerk of the Court, the money goes back to the victim eventually.  Then, we have the often misunderstood “forfeiture.”  Under the current version of this old doctrine, property used in or obtained as a result of a crime belongs to the government from the moment the crime took place.  If that property has been used up (or in the case of real money, has been spent) then the government can try to get an equal amount out of the Defendant using the “substitute assets” rule.  The forfeiture payments also go right to the U.S.  And, here’s the kicker: if a Defendant is able to pay, he or she can be forced to pay all three amounts for the same crime, meaning triple whammy for any person of means who is convicted of a federal offense.

Now to our recent decisions discussing some of these financial aspects of federal criminal sentencing.     In United States v. Green 16-3044-2018-07-31, the Defendant’s Mom got VA benefits, and when her mother passed away, Ms. Green kept spending the monthly check without telling the VA. This went on for many years, and it took many years more before the government got around to charging her with a crime in New York.  Ms. Green was required to pay restitution, but the question was how far back did her restitution obligation go, especially since many of the monthly payments were outside the 5-year statute of limitations?  The prosecutors argued that embezzlement of this sort is a “continuing crime”, meaning that they wanted her to pay restitution back to the point when the Defendant’s mother died. Nope, said the Second Circuit, only those within the limitations period qualify as restitution.

Casual readers (those in Bermuda shorts included) know that I am a criminal defense lawyer in Atlanta who specializes in federal cases.  Some readers even know about “discovery” in a federal criminal case.  These readers know about Rule 16 from the Federal Rules of Criminal Procedure and the constitutional principles underlying the long-standing “Brady rule“.  I am currently trying to plow through some discovery materials in some relatively new federal criminal cases, and for those readers who have had to do this on the defense side of a case, you know how maddening this can be. It’s enough to make you want to pull your hair out. man-screaming-and-pulling-his-hair-stock-images_csp8441795

First, the maddening aspects of the rules themselves.  By the language of the rules, the only “evidence” that the prosecutor has to hand over to the defense prior to trial in a federal case is limited to documents and materials that the government intends to use at trial, the results of any expert testing, and any statement made by the defendant to a known law enforcement official. The Brady rule also says they have to turn over any information tending to show that the Defendant is not guilty, but they actually are not required to turn it over prior to trial, and only have to reveal this exculpatory information to the defense so that the attorney at least has some time to make use of the evidence.  Note, this limited list of information does NOT include the names or statements by witnesses.  The utterly absurd Jencks Act (a vestige of the 1950’s!) says that the prosecutor only needs to provide a witness’s prior statement to the defense AFTER the witness has finished his government testimony in a trial.  Talk about trial by ambush.

The rules and constitutional principles that impact discovery, along with the data-driven explosion of information, have led most federal prosecutors to basically ignore the old days and provide lots of information up front to the defense lawyer.  Nowadays they even give us witness names and their statements, figuring we are going to find out anyway so why play “hide the ball.”   From the old days, when we basically learned very little, we have come to the modern era, where prosecutors dump so much data on the defense that a single attorney is disadvantaged, unless he or she is very technologically capable and assisted by highly skilled support staff (like the wonderful folks with whom I work).

Readers know that I am a criminal defense lawyer in Atlanta who handles lots of federal cases. Most folks also know that various prosecutors employ full-time press officers who put together a “press release” every time that something happens that the prosecutor hopes to see published.  And most of us are so inundated and overwhelmed with information from so many sources that we have a hard time figuring out what is true and what is, to use the recently coined term, “fake news.”  So, let me use a case in which I am involved to demonstrate how all this happens and how sometimes it is important for a lawyer to have his or her client’s side mentioned as part of all this publicity.

The local federal prosecutors have their website where they give out their “news,” such as announcing a new set of charges or that someone got convicted and sentenced.  Here is a recent one announcing the guilty plea by my client. Note that it is a pretty straightforward account of the case and that my client has agreed to plead guilty.  Now, what happens is that these “press releases” are obtained by various news organizations and internet news sites.  Some newspapers and sites are devoted to legal news, and the reporters for these organizations tend to be very good and very well-aware that a press release is only one side of the story.  For example, here is the story written by a reporter working for a well-respected local paper devoted to legal news which discusses this recent case involving my client.   Note that this story is written by a reporter who not only read the prosecutor’s press release, she actually wanted to hear both sides and called me for my reaction, which is mentioned in the story.

The problem, of course, is that all of this works its way on to the internet.  I have no problem with the dissemination of truthful and accurate information, that is a good thing.  However, big problems happen when at the early phase of this process a prosecutor or reporter decides to cut corners.  Some prosecutors do far more than issue a well-honed and accurate press release. Instead, these prosecutors say all sorts of incendiary things to reporters who lap it up like kittens at the milk bowl in order to publish a story with some juicy quotes.  Then, less scrupulous internet sites further disseminate the inflammatory parts of the story, and subsequent readers only hear one side, a side that is frothing at the mouth (kind of mixing my metaphors with the kittens at the bowl, but you get the idea).

I got a notice recently that in a few weeks will be the 35th anniversary of the day I was sworn into the Bar as a lawyer.  Also, I decided to look back at the history of this little blog, and discovered that soon after my 35th Bar anniversary we will pass the 10th anniversary of this “weblog” (which is how these little publications were originally known).  Like all milestone anniversaries, these two caused a bit of reflection, something kind of rare for a busy practicing lawyer.

Life in general is quite different than the day in 1982 when I became an attorney at law.  I had more hair, it was a different color, had no children, and was plagued by fewer worries.  Now, me, my graying hair and always opinionated kids live in the data-driven world where devices are always at our reach, information can be summoned at a moment’s notice from a variety of fora, and individual privacy is a thing of the past.  I’m not complaining, progress is good.  However, these many changes have greatly changed law and lawyering. Practicing law is now much more fast-paced, but likewise the data revolution has made me far more efficient.   Continue reading