September/October 2018
Counsel’s strategy at an SEC proceeding will be different from counsel’s game plan in a criminal forum, but much will be familiar to the criminal defense lawyer.
Articles in this Issue
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Affiliate News
Affiliate News for September-October 2018 Champion
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Book Review: A Line Becomes a River: Dispatches from the Border
Published not long ago, but still before the explosion of tragic news about immigrants arrested at the border, A Line Becomes a River: Dispatches from the Border is the work of Francisco Cantú, a former Border Patrol agent. Beautifully written and with an obvious empathy for the migrants that Cantú was required to arrest, the book is not an expose of the Border Patrol. Rather, it is a collection of stories and a moving tribute to those who have crossed the border under life-threatening conditions. Compared with the controversy that surrounds the Border Patrol, including officer involved deaths of migrants, this book could nearly be dismissed as irrelevant. Cantú and his book have not been immune from public contention surrounding his service with the Border Patrol: activists, objecting to the idea that he would profit from his time with the agency, demonstrated at a book signing in San Francisco.
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Book Review: The Forensic Unreliability of the Shaken Baby Syndrome
The story is familiar and tragic. An infant is found nonresponsive with no visible signs of trauma. The frantic caretaker calls 911. The child is rushed to the hospital where a CT scan reveals thin subdural hemorrhage and brain swelling. Because the caretaker cannot explain how the child developed these symptoms, the hospital child protection team diagnoses child abuse and reports a crime. The child protection team informs the police and family that the child’s “injuries” are the result of Abusive Head Trauma (AHT) and could only have been inflicted with the force of a high speed car accident or multistory fall. The caretaker is arrested. As the criminal process unfolds the child abuse team advises the police, the medical examiner, and the prosecution. At trial, the child abuse pediatrician informs the jury that the child’s “injuries” were caused by abuse. The caretaker is convicted.
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Book Review: The Prohibition Era and Policing: A Legacy of Misregulation
In The Prohibition Era and Policing: A Legacy of Misregulation, Professor Wes Oliver of Duquesne Law School gives us a delightfully written tour through the Prohibition-era roots of our current system of police regulation. He poses this question: How did the criminal justice system come to focus on regulation of search and seizure procedure rather than guilt and innocence or serious police misconduct, such as physical abuse and unwarranted shootings? The answer, according to Oliver, lies not in the orderly development of legal doctrine or even in the civil rights movement, but in public and judicial reaction against that misguided experiment in outlawing the sale of alcohol — Prohibition.
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Book Review: Why They Do It: Inside the Mind of the White Collar Criminal
When high-achieving people are accused of financial crimes, the same question inevitably comes up: why would they risk everything? Couldn’t they just have enjoyed being slightly less successful? They must have some character defect. Or perhaps an addiction? An evil gene? Maybe they were just raised wrong.
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From the President: Unable to Bear the Weight of the ‘Document Dump’: A Heavy Burden on Individuals
The government’s production of millions of pages in discovery is no longer relegated to white collar cases. We cannot allow the government to coerce individuals into guilty pleas because they lack the financial resources to review millions of pages produced in response to a discovery request.
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Handling SEC Enforcement Matters
Although the Securities and Exchange Commission is a creature of administrative law, criminal defense lawyers possess the strong advocacy skills that will enable them to handle SEC cases. It is important, however, to know how the landscape at the SEC differs from criminal defense forums. Susan Brune and Juliet Hatchett make the comparisons, point out the contrasts, and for the benefit of criminal defense practitioners who have not yet had the opportunity to deal with the SEC, demystify the process.
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Happy Birthday, FCPA: Implications of DOJ’s New FCPA Corporate Enforcement Policy on the Act’s 40th
A year ago, Deputy Attorney General Rod Rosenstein made a major policy announcement regarding the new Foreign Corrupt Practices Act Corporate Enforcement Policy. The Policy is the most extensive and substantial change to the U.S. Attorneys’ Manual section on the FCPA and has implications for both companies and individuals. It promises substantial benefits for cooperative companies — including a presumptive “declination” of prosecution provided that the Policy’s prerequisites are satisfied. Should companies jump for joy or should they look upon the Policy with a jaundiced eye? Justin Danilewitz and Albert Moran caution that the need for careful, fact-sensitive and detailed weighing of the costs and benefits of disclosure, and the value in robust compliance policies and procedures, remain as critical as ever. They discuss the Policy, cases illustrating how the Policy will be applied, and the implications of the Policy for companies and individuals.
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Informal Opinion: More Than Just Taxes: Considering the Effects of the New Government Reporting Requ
The new federal tax law contains a provision regarding the process of seeking tax deductions for payments made to the government in satisfaction of a settlement agreement or judgment. Practitioners must understand the tax consequences of the new law and its potential effect on the availability of insurance coverage for their clients.
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Justice Scalia and the Interpretation of Criminal Statutes
Although he described himself as “socially a law and order conservative,” on the bench Justice Antonin Scalia sometimes came down on the side of the accused. For example, he spoke for the Court in Crawford when it reinvigorated the Confrontation Clause. In addition, Scalia’s approach to statutory interpretation led him to urge revival of the rule of lenity, narrowing of liability for mail and wire fraud, and rejection of deference to administrative interpretation of criminal statutes. Paul Mogin says Scalia’s insights on these subjects will be cited by criminal defense attorneys for years to come.
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NACDL News: Judicial Conference Takes Steps Toward Greater Independence for Federal Public Defender
On Sept. 13, 2018, the Judicial Conference of the United States publicly released the 2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act (CJA Review Committee) and issued a statement approving 19 of the Committee’s 35 Interim Recommendations, importantly stating that “the Defender Services Office will be made an independent office within the Administrative Office, reporting at the executive level.” The Judicial Conference is the national policymaking body for the federal court system. This re-elevation of the Defender Services Office reverses a step that was taken more than five years ago and was noted as a problematic development in a 2015 study issued by NACDL.
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NACDL News: NACDL Releases Compendium of Scholarship Addressing The Enforcement Maze
Over-Criminalizing American Enterprise
NACDL News for September/October 2018
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NACDL News: Supreme Court of Virginia Overhauls Criminal Discovery Rules
Major Victory for Broad, Bipartisan Coalition of Criminal Justice Reformers
NACDL News for September/October 2018
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The Basics of an Office of Inspector General Investigation — Taking It Seriously
A federal agency’s Office of Inspector General (OIG) has no criminal authority. An inspector general cannot arrest counsel’s client or charge the client with a crime. The most an OIG can do within the agency is refer a person for disciplinary action. For these reasons, an investigation by an inspector general is no big deal. Right? Wrong. Lawyers should not be complacent simply because an OIG lacks criminal authority. OIG investigations can derail careers and lead to criminal investigations. Sara Kropf and Daniel Portnov describe an OIG’s statutory authority and offer practice tips that can be helpful when representing someone in an OIG investigation.