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FCPA

My friend Mike Koehler has a "new and improved" website for his blog devoted to the Foreign Corrupt Practices Act.  Here's the link.

Conference on Intersection of Complex White Collar Crime Prosecutions and Business Bankruptcy

From an email that I received earlier this week:

CALL FOR PROPOSALS / CALL FOR PAPERS

The American Bar Association, Business Law Section, Business Bankruptcy Committee, Criminal Justice Section, White Collar Crime Committee and the Golden Gate University School of Law proudly host a national dialogue about freezing, seizing and distributing entity assets and operating the entity at the intersection of complex white collar crime prosecutions and business bankruptcy.  The conference will serve as part of an ongoing discussion about lessons learned, recurring issues and best practices.  The conference will feature leading voices from the federal district and bankruptcy bench, Department of Justice, Criminal and Civil Divisions from "Main Justice" and prominent U.S. Attorney's Offices, and Securities and Exchange Commission, as well as prominent white collar crime and business bankruptcy practitioners and academics.  The conference is scheduled for Friday and Saturday, November 4-5, 2011 at Golden Gate University School of Law in San Francisco, CA.

The conference organizers seek proposals for papers of publishable quality that explore this intersection between white collar crime prosecutions and business bankruptcy.  Particularly, we seek papers discussing freezing, seizing and distributing entity assets, operating the entity, and the different practices and goals inherent to criminal prosecution, civil enforcement and business bankruptcy proceedings.  A committee of academics will review paper proposals that may contribute to our discussion.  Both essay and article length papers are welcome.

Proposals should describe the thesis, its general support, and the proposed format of the final paper. Proposals should be no more than 3-pages. We will review proposals as received, beginning on June 1, 2011, with the submission deadline of August 1, 2011.  Authors of selected proposals will then submit a draft of the paper in advance of the November conference and by October 1, 2011. During the November conference, authors of the selected proposals will present a draft of their paper and the committee of academics and conference participants will review the draft papers in advance of the conference and participate in workshops for selected papers during the conference.

To submit a proposal or draft paper, or for more information about the conference, participants or call for papers, contact Professor Karen Gebbia (kgebbia@ggu.edu) or Wes Porter (wporter@ggu.edu), or by phone at (415) 442-6600.  The attachment should be in Word or PDF format.  Late submissions will not be accepted.  An e-mail acknowledging submission will be sent promptly to each author.  Decisions will be communicated on a rolling basis with final decisions no later than August 15, 2011.

ABC Hires New Abduction Commentator: Elizabeth Smart

Am I the only one who thinks this story is weird?  ABC has announced that Elizabeth Smart will join ABC as a commentator on missing person and child abduction cases.  Clearly, Smart has unique insights to these matters - having been abducted, raped and abused herself for nine months at age 14.  And she seems to have recovered amazingly from that horrific experience. 

Elizabeth Smart deserves to have a wonderful life - and becoming a television commentator certainly qualifies as a plum job in the eyes of many people. 

But the act of hiring an abduction commentator, and the decision to trade on Smart's fame in this respect, is a little creepy.  And the news alone is sure to perpetuate public misconceptions about the extent of the child abduction problem.

Congress And The Politics Of Criminal Law: Sometimes It's Hard Not To Love Justice Scalia

Broad stroke categorization of justices is always dangerous.  As many people (including the Justice himself) have noted, Antonin Scalia can't be pigeonholed when it comes to criminal law.    Here is Scalia, dissenting yesterday, in Sykes v. United States:

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases,so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt.

 

How to improve guilty pleas

As some of you may know, some of my writing has focused on the Sixth Amendment jury trial right and how this plays out with our system of guilty pleas.  Over on the EvidenceProf blog (always a good read), Colin Miller discusses a recent DC Ct. of Appeals case involving the public aspect of the jury trial right, and then compares his forthcoming article about improving guilty pleas with better judicial participation with a recent article  of mine arguing for community participation in guilty pleas.  If you're interested, the link is here.

And to chime in on the self-promotion debate going on both here and on Prawfsblawg, I obviously have no problem with any kinds of promotions, whether self-, for others, or in the shopping sense.  In my mind, anything that promotes the discussion of ideas is a good thing.  So promote away, scholars!

Pretext Laws: NY Cops Bust Make 51,000 Marijuana Arrests Per Year

According to this story, the NY police arrest 140 people per day for possession of small amouts of marijuana.  Multiplied out, that's over 51,000 arrests per year for a charge that few people - including, certainly, the New York District Attorneys offices - take very seriously.  I understand the true purpose of these arrests to be social control - they give officers an excuse to take potential troublemakers off the street.  (Lawmakers in Albany may think there are other social benefits as well - namely, the suppression of marijuana use - but it's hard to make the case that this priority is shared by many folks within New York City itself.) 

This makes me ponder two things.  First, isn't this a gross waste of resources?  Second, if it's not, it seems that the reason is that the arrests serve goals other than those we usually attach to drug laws - namely, as a pretext for other social control objectives.  We usually think in terms of pretext stops.  But what about pretext laws:  statutes designed not principally to control the stated regulated behavior, but to justify police interventions and arrests.  These laws may be constitutional, but they seem particularly likely to be targeted at hated or feared minority populations.  (Presumably, disorderly conduct laws also fit this bill - but in their generic coverage, perhaps they are less likely to be targeted at discrete groups.) 

I concede that New York marijuana regulations may not have been adopted, ab initio, as pretext laws (but see Kathleen Auerhahn's essential article on Split Labor Markets ).  But it seems to me that that's what they've become.

Allegations of Misconduct Cause Shakeup At Northwestern J-School Innocence Project

David Protess, the journalism professor directing Northwestern's Medill J-School Innocence Project, has been removed from the course by the University as a result of claims that he lacked personal and professional integrity.  He is alleged to have both failed to produce documents, and altered documents, in response to a Cook County DA subpoena.  According to the University's official statement, these irregularities were discovered when lawyers for  the client himself - Anthony McKinney - turned over material to the DA. 

Protess pushed back, stating that Northwestern's claims were “sinister stuff that they have come up with through selective quotes.”

A more complete story is here.  A critical look at how this mess poorly serves McKinney is here.

Do DA Performance Bonuses Help Or Hurt Defendants?

The ABA Journal reported, last week, that a Colorado defense lawyer is seeking documents relating to the Arapahoe County DA's policy of giving line prosecutors with high conviction rates bonuses.  Presumably, the defense bar thinks that this will result in some violation of a prosecutor's duty to justice .  Fair enough guess - but I think the defense bar might have this one wrong.  Per the Journal:

[Arapahoe DA] Chambers paid bonuses last year to felony prosecutors who won convictions in at least 70 percent of their cases. They were required to have tried at least five cases, and plea bargains and mistrials didn’t count. Prosecutors assigned to complex trials were exempted. The average bonus paid was $1,100.

Notice this: DA's make more money if they win a high percentage of their trials.  But pleas don't count in the denominator.  And they only need five trials.  What would an optimizing prosecutor do?  I suspect she'd plead out a ton of cases that could go either way.  Basically, anything that's not a slam dunk would get plead.  Indeed, one might worry that it would be the general public - not the defendants - who'd lose under this policy, because there might be a number of instances when a case really should go to trial (for the sake of the victim, public safety, or expressive reasons) but would present a risk of acquittal. 

I think that the DA is probably attempting a valid goal here - encouraging lawyers to try cases excellently - but using conviction rates in this way doesn't seem like a very effective strategy.

Defining Child Pornography

The NY Times reported (here) today on the 21 year-old Applebee's waiter/aspiring musician who has been charged with manufacturing and distributing child pornography.  The offense?  He posted a video of himself singing a song and later edited the video to make it look as if he had sung it in the presence of a group of elementary school students.  He had, in fact, performed to this group of elementary school students, but the actual performance was an age-appropriate song.  

[The accused] said the idea for the video arose out of planning for a Valentine’s Day variety show at a downtown club. He wrote the explicit song when he was 16, he said, and had played it in bars before. But for the variety show he wanted to pair it with “an inappropriate audience” as a comedy segment. He thought of using elderly people, he said, but decided instead on young children.

He has admitted that he deceived the teachers at Beechnau Elementary School, in the small farming community of Ravenna, about his intentions. Mr. Emory included a disclaimer with the video, saying that no children had actually been exposed to the sexual lyrics. He said that his friends — fans of Daniel Tosh and other edgy comedians on the Internet and cable television — all thought the video was hilarious when they saw it at the local nightclub or on YouTube. (It has since been removed.)

But the hilarity vanished when sheriff’s deputies showed up at Mr. Emory’s house and seized his computer and his iPhone.

Today I had a lively discussion with colleagues, including my friend Audrey Rogers, who has written at length about child pornography (see here and here, e.g.).  Our group had trouble agreeing on whether the prosecutor could make a strong case that the accused had manufactured and distributed child pornography. 

Here's a portion of the relevant state statute, M.C.L.A. 750.145c.:

A person who distributes or promotes, or finances the distribution or promotion of, or receives for the purpose of distributing or promoting, or conspires, attempts, or prepares to distribute, receive, finance, or promote any child sexually abusive material or child sexually abusive activity is guilty of a felony, punishable by imprisonment for not more than 7 years, or a fine of not more than $50,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the childsexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child.

(Emphasis added.)   And what is "child sexually abusive material"?

“Child sexually abusive material” means any depiction, whether made or produced by electronic, mechanical, or other means, including a developed or undeveloped photograph, picture, film, slide, video, electronic visual image, computer diskette, computer or computer-generated image, or picture, or sound recording which is of a child or appears to include a child engaging in a listed sexual act; a book, magazine, computer, computer storage device, or other visual or print or printable medium containing such a photograph, picture, film, slide, video, electronic visual image, computer, or computer-generated image, or picture, or sound recording; or any reproduction, copy, or print of such a photograph, picture, film, slide, video, electronic visual image, book, magazine, computer, or computer-generated image, or picture, other visual or print or printable medium, or sound recording.

A "listed sexual act" is defined as "sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity."  

I haven't seen the video, so I can't quite wrap my head around how images of children listening to music -- spliced into a song -- meets the definition of "child sexually abusive material."  That being said, as a parent, I would be furious if it were my child's image used in the video.  I get that.  Still, based on publicly available information, this looks to me like overreaching by the prosecutor.

What about the 3,000+ people who (according to the NYT) "liked" the video that the accused had posted on Facebook?  Under a related part of the statute cited above, possession of "child sexually abusive material" is a crime.  Will those 3,000+ people be charged with possession of child pornography?  

Deinstitutionalizing the Prisons

Our ever-growing number of convicted felons in prison is a continuing problem in criminal justice, particularly so in this time of fiscal austerity.  We've seen states like California have their prison system taken over by the federal government; seen counties (like Maricopa County, Arizona) go to extremes to cut costs (such as housing prisoners in tent cities, feeding them on less than $2 a day);  seen reintegration services for released prisoners cut to bare bones or nothing.   No band-aid solutions seem to be working.

So it was with great interest that I read Bernard Harcourt's latest article, entitled:

REDUCING MASS INCARCERATION: LESSONS FROM THE DEINSTITUTIONALIZATION OF MENTAL HOSPITALS IN THE 1960S

In 1963, President Kennedy outlined a federal program designed to reduce by half the number of persons in custody in mental hospitals. What followed was the biggest deinstitutionalization this country has ever seen. The historical record is complex and the contributing factors are several, but one simple fact remains: This country has deinstitutionalized before. As we think about reducing mass incarceration today, it may be useful to recall some lessons from the past. After tracing the historical background, this essay explores three potential avenues to reduce mass incarceration: First, improving mental health treatment to inmates and exploring the increased use of medication, on a voluntary basis, as an alternative to incarceration; in a similar vein, increasing the use of GPS monitoring and other biometric monitoring, and moving toward the legalization of lesser controlled substances. Second, encouraging federal leadership to create funding incentives for diversionary programs that would give states a financial motive to move prisoners out of the penitentiary and into community-based programs. Third, encouraging impact litigation of prison overcrowding, as well as documentaries of prison life, as a way to influence the public perception of prisoners. With regard to each of these strategies, however, it is crucial to avoid the further racialization of the prison population and merely transferring prisoners to equally problematic institutions.

Whether you agree with his conclusions or not, it's a fascinating piece.

The Insanity Plea for Jared Loughner?

It will come as no surprise that the lawyers for Jared Loughner, the alleged shooter in the Tuscon murders, are thinking of raising the insanity defense at trial.  But as all students of first year criminal law know, successfully raising the insanity defense is easier said than done--one can be medically insane without necessarily meeting the threshold for legal insanity. 

This very topic, of who qualifies for the insanity defense, is being discussed at the NYTimes' Room for Debate blog today, featuring comments from Alan Dershowitz, James Whitman, and Kurt Scheidegger, among others.  An interesting read!

 

Truth, Reconciliation and the Bank Bailouts?

Dr. Jaime Malamud Goti is the former Solicitor General of Argentina.  During his tenure, he was responsible for the trials of Argentine junta members for human rights violations against the people of Argentina. I have just read Dr. Malamud Goti 's essay A Turbulent Past and a Problem with Memory, published last year in Oxford's International Journal of Transitional Justice.  He writes with beautiful honesty about blame, memory and justice-seeking.  He says:

As much as I believe that some acts are unquestionably abominable, I reject the notion that they presuppose an evil agent, that is, some radically evil being who does terrible and causally inexplicable things to others....I do believe ... that the circumstances of a violent political conflict justify forgoing punishment, despite its strong communicative power concerning what is right and wrong. My stance is based on my endorsement of two central notions: what I label ‘rationality skepticism,’ which I have just sketched, and a very ample understanding of luck, which affects the way our plans arise and how our lives shake out.

Dr. Malamud Goti's essay is at one level an analysis of the different goals of a criminal prosecution versus a truth and reconciliation commission, and the necessary preconditions for the success of either project.  At another level, the essay is a personal (and humane) rumination on human nature.  We are all deeply flawed, and but for some "accidents" of circumstance, any one of us might be in the position of the accused wrongdoer or the alleged victim. 

Might a truth-and-reconciliation approach work outside the transitional justice context?  Is there a private law application for a similar framework? Imagine if Elizabeth Warren were the head of a Consumer Credit Truth and Reconciliation Commission, not an Assistant to the President and Special Advisor to the Secretary of the Treasury on the Consumer Financial Protection Bureau.  How about  a Truth and Reconciliation Committee for tax evaders? (As a tax lawyer, I can't see that one working very well.)   Other suggestions?

 

Bail for the Poor

Earlier this week the New York Times had an article detailing the ways in which poor defendants are badly served by the existing bail bond industries that have sprung up in the New York area:

Vague laws and insufficient oversight have allowed some bondsmen in New York to return defendants to jail for questionable or unspecified reasons, and then withhold thousands of dollars to which they may not be entitled, according to lawyers, judges, state regulators and even some bondsmen.

Those cases turn the system on its head: Those who are supposed to give poor defendants a shot at freedom while their cases are pending are instead the ones locking them up and disenfranchising them further.

The laws “are open for exploitation,” said James Carfora, a Long Island-based bail bondsman.

“They need to be more specific,” he said. “If I bail a guy out today and I don’t like him, I can put him back in jail, and it’s O.K. To me, that’s screwed up.”

Complaints against bondsmen have risen in recent years, according to the New York State Insurance Department. Although the allegations may often involve only a thousand dollars, that sum can be the difference between freedom and detention for indigent defendants who make up most of bondsmen’s clientele.

This is depressing but not unfamiliar fare to those who serve indigent or impoverished defendants.  Lax regulations, a financially strapped court system, overburdened lawyers and ignorance on the defendants' part all add up to a criminal justice system that fails to uphold many important 6th Amendment rights.  The right to reasonable bail seems a simple one to ensure, and yet it, too, has been monetized and corrupted with little oversight.   Like many of the problems plaguing indigent defense, it is an issue that deserves further investigation, regulation, and reform. 

 

 

 

Culture Clashes: Books and Movies

Over the last week, I've enjoyed (for want of a more appropriate word) a book and a movie both of which have somewhat similar themes although each is very different.  The book (with thanks to Steven Lubet for recommending it) was Chloe Hooper's The Tall Man which dealt with the first criminal prosecution in Australia of a policeman for an aboriginal death in custody.  It's hard to believe that such a prosecution didn't occur until a few years ago.  And the detail with which the author investigates the Queensland police culture and the aboriginal indigenous culture is really quite impressive.  She obviously had more access to the Palm Island inhabitants and their legal representatives, but she did her best with what she had with respect to other groups involved in the story including police groups and politicians.  She raises lots of inter-racial issues for which there are no easy answers, but the book certainly makes you think. 

I also watched a movie from 2007 which I hadn't heard of before - actually, I think it might have been a Netflix recommendation.  It's called The Visitor and it stars  Richard Jenkins.  The film deals with an unlikely friendship that develops between a dispirited old college professor and a young couple of illegal immigrants who end up living in his New York apartment.  It deals with themes of racial differences, particularly between Arabs and Americans post-9/11 in the immigration context.  It also deals to a small extent with the relationship between the boyfriend and girlfriend in the illegal couple as the woman is from Senegal and the man is from Syria.  The writing, directing and acting are very subtle and understated, but it is still an engaging film that makes you think about immigration, cultural differences, and to some extent what our goals are/should be both personally and on a larger scale.  I really wasn't expecting to enjoy the movie so much, but I would recommend it - again, hardly light holiday viewing, but maybe sometime in the new year...

The Overwrought Response To WikiLeaks

I'm guessing that many of our readers who use Facebook have discovered that at least one friend has posted a link to Glenn Greenwald's Salon article, WikiLeaks Reveals More Than Just Government Secrets.  As a public service for those of you who haven't seen the essay and have cocktail parties this weekend - or perhaps want to read a little pushback to the master narrative - I'm posting a link.  Interestingly, using Facebook as a dataset, this piece seems to have gained traction from friends on both the left and the libertarian right.  The first 'graph sets the stage:

The WikiLeaks disclosure has revealed not only numerous government secrets, but also the driving mentality of major factions in our political and media class. Simply put, there are few countries in the world with citizenries and especially media outlets more devoted to serving, protecting and venerating government authorities than the U.S. Indeed, I don't quite recall any entity producing as much bipartisan contempt across the American political spectrum as WikiLeaks has: as usual, for authoritarian minds, those who expose secrets are far more hated than those in power who commit heinous acts using secrecy as their principal weapon.

Overwrought?  Those are Defense Secretary Robert Gates' words.

FCPA: The Video

My friend Mike Koehler (a/k/a "the FCPA Professor") was one of several witnesses who testified at yesterday's Congressional hearing on the enforcement of the Foreign Corrupt Practices Act.  Readers interested in the testimony can find the C-Span video here.  And newcomers to the topic may wish to bookmark Mike's blog.

Criminal Voyeurism: Watch Homicide Detectives Interrogate One Of Their Own

Stephanie Lazarus is a detective in the Los Angeles Police Department.  She has been accused of killing the wife of her ex-boyfriend back in 1986.  The case remained unsolved for 24 years but, recently, the LAPD began to suspect Lazarus.  LAPD homicide detectives conducted an intriguing hour long  video interrogation of Lazarus  in which you can watch them ease her along towards discussing the case.  It's really cool: you can actually hear/see homicide detectives at work.  The videos are chopped into shorter clips and you can watch them here.  A fuller written account is here.

House Approves Ban On Animal Cruelty Videos

The House approved HR 5566 on Monday, the "Animal Crush Videos Act of 2010," in an effort to revive a federal ban on animal cruelty videos.  In US v. Stevens, the Supreme Court held that the crush video statute enacted in 1999 was unconstituitonally overboard under the First Amendment, and ever since then, Congress has been trying to hammer out a narrower alternative.

Would the proposed law survive a constitutional challenge?  Relevant links here.

-Kathleen Bergin

The Skilling Saga

Those who continue to follow Jeff Skilling's path down the appellate road may find interesting this story from the local newspaper.  A panel of the Fifth Circuit will hear oral arguments in his case today in Houston (interesting court announcement here).  I tried to find the panel composition, with no luck.  A digital recording of the arguments may be available later today (click here if interested).

Mapping Crime

Each student in my Crime and Community seminar is responsible for tracking crime news coverage in an individual city and sharing their findings every week on a class blog.   My goal is for students to become more critical readers of crime news, discover any common themes between cities, and identify variations in crime (and media accounts of crime) between cities.  

Recently, the student  covering Tucson discovered this very cool interactive crime map.  It allows a reader to see where specific crimes are being reported over a day, week, or month.  It also gives a good sense of comparative frequency of reported crimes.  It's a nice teaching tool for anyone who wants show a visual account of reported crimes.  And it's just plain interesting.