Monday, August 31, 2009

A Goolsby "War Story:" The Case of the Alibi Defense

Being a good trial lawyer involves skill and experience, but sometimes a little luck helps, too!
My first jury trial as a young state prosecutor involved the armed robbery of a south Georgia convenience store. The store had been held up by a lone gunman at about 7:30 one evening. The store clerk and a customer had positively identified the defendant as the gunman. The customer had even gotten a good description of his vehicle, along with a partial tag number.
The defendant offered an alibi defense. He contended that he couldn’t have robbed the convenience store, because he was at home at the time of the robbery. He claimed that he and his family were all gathered around the television set, watching the old game show, “Name That Tune.” The defense attorney also put the defendant’s sister on the stand. She likewise testified that her brother had been at home, with the rest of the family, watching “Name That Tune.”
As a struggling young trial lawyer, I had no clue about how to cross-examine the defendant’s sister. Law school had clearly not prepared for this situation. I stood up and, as I approached the lecturn, I still had no game plan for my cross-examination. Then the idea hit me. Throwing caution to the wind, I simply asked her, “Ma’am, you say that your brother was at home at 7:30, can you tell this jury whether he robbed the store BEFORE or AFTER “Name That Tune?” Incredibly, before she could think it through, the defendant’s sister stupidly blurted out, “Before!” I was shocked. The defense lawyer was shocked. Everyone in the courtroom was shocked. Then the laughter began. First, it was just a few scattered giggles. But then it spread, like butter on a hot biscuit. Soon, everyone in the courtroom, including the jurors, was laughing! Everyone laughed, that is, except the defendant and his attorney! The jury promptly “named the defendant’s tune” in one note, with a guilty verdict! I won my case! I was so happy that I could have jumped a stump backwards!
I learned from this case that God looks after not only drunks and fools. God also looks after inexperienced trial lawyers! But if I try cases until I am one hundred years old, I will never again be this lucky in cross-examining an alibi witness!

Friday, August 28, 2009

The Attorney General's Investigation of Past CIA Agent Terrorist Interrogations: An Abuse of Prosecutorial Discretion? What are the Ramifications?

Attorney General Eric Holder’s announcement this week that he has appointed Special Prosecutor John Durham to investigate past CIA terrorist interrogations raises a number of disturbing issues. Now, this is a blog about white collar crime; this is not a political blog, so maybe I should just leave the political questions for other bloggers. But whenever I see government abuse of prosecutorial discretion, it bothers me! In my opinion, Mr. Holder’s decision raises serious criminal law and Constitutional issues about the prospect of DOJ attorneys prosecuting CIA agents who were apparently following interrogation guidelines previously approved by other DOJ attorneys.

As a former federal prosecutor, (and currently, as a criminal defense attorney), I believe the Attorney General’s decision to open this new investigation, and any prosecutions that might follow, are also a colossal waste of government resources. Moreover, they are just plain wrong! No one should condone torture, but, in my opinion, unless the CIA agents engaged in a pattern of serious abuses beyond what has been publicized, no jury in this country will ever convict them. As I have indicated before in this blog, the government must prove criminal intent in any criminal case. But if these agents were following approved guidelines, they had no criminal intent. The CIA agents just did their jobs and, in the process, thankfully, saved innocent American lives.

And thankfully, at least CIA Director Leon Panetta is reportedly defending his agents. But this new investigation also raises other serious issues. In spite of Panetta’s support, how will the prospect of political witch hunts and prosecutions affect CIA agent morale? What will be its impact on future interrogations of captured terrorists? What has happened to the “war on terror?” And why have some government bureaucrats already forgotten about 9-11?

In the future, will agents ever again vigorously pursue information to save American lives? Where will Jack Bauer be when we really need him to stop the next 9-11? And folks, that’s not where the absurdities end! As you probably have also heard, it appears that agents may now also be required to advise captured terrorists of their Miranda rights! That is outrageous! As the late actor William Bendix often surmised in the old t.v. program,“The Life of Riley:” “What a revolting development this is!” In conclusion, please allow me to vent and exercise my First Amendment rights, (while we still have them), and by offering the following fictional, satirical account of how terrorists will now evidently be treated.

As longtime UGA football broadcaster, Larry Munson, used to say, “Get the picture!” Please just imagine in your mind’s eye the capture by our soldiers of a top terrorist on an Afghanistan desert battlefield. Intelligence reports indicate that the captive has information about a possible future terrorist attack. Imagine you are the agent who has been assigned to conduct the interrogation. And now imagine how you will feel when you are handed the following “new” U.S. Army/FBI/CIA Agent Field Manual on the interrogation of captured terrorists….

(See the next post....)

The New Guidelines for Advisement of Rights to Terrorists?


New U.S. Army/FBI/CIA Agent Field Manual:

[First Note to Interrogating Agent: Identify yourself to your defendant/guest and remember: A big smile works better than water boarding any day! Next, proceed with the following advisement of rights.]:

1. Mr. [Defendant/Guest’s name]: First of all, please allow me to apologize to you for interrupting your pursuit of martyrdom here on the battlefield against our American soldiers.

2. And, Sir, if you don’t mind, please also allow me now to advise you of your Constitutional rights—And please understand you will be treated better and given greater rights than those afforded to any American citizen.

[Second Note to Interviewing Agent: Please also remember to ask the defendant/guest if he is comfortable…and please don’t forget to smile!]

3. Let me also advise you that our government apologizes for all our past administration’s sins and transgressions against you and your people in the former “war on terrorism”—now, if you don’t mind, we just want to sit and talk with you, and we apologize to you for not being more sensitive to your needs and your desire to kill us and to accomplish your most holy jihad against our country;

4. Please be further advised that you have the right to remain silent, and even if you possess valuable information about future terrorist attacks against us which may cost thousands of innocent American lives, we promise we won’t touch you, or do anything else about it;

5. You also have the right to have a free team of attorneys present, to represent you, and to sue me, or sue our government, if I touch you, or if you otherwise don’t get your way;

6. You further have the right not to have anything you say used against you, in a court of law, but instead, you have the right to use anything I say or do against me in my own prosecution by my own government, now, or in the future, if and when they change the rules again;

7. In short, please understand you have the right to a fair trial and to be treated like an American citizen, with full Constitutional rights, and not as a prisoner of war, nor as the dirty, low-life, God-forsaken, good-for-nothing, scumbag terrorist that some other uninformed people might think you are;

8. And please let me also advise you not to worry about Gitmo, that big, bad prison your fellow terrorists may have told you about, because it is being shut down. Instead, you have the right to request assignment to any cushy U.S. federal prison of your choice; that is, until your inevitable release and free trip back to any terrorist nation, training camp, or battlefield of your choice;

9. In the alternative, if you prefer, you have the right to be released inside the U.S. to any target location of your choice, and there you will be treated to free room and board, (at U.S. taxpayer’s expense), along with free universal health care, of course; and

10. Finally, Sir, please review the special kosher menu before you and make your meal selections while you consider all your rights and choices—and, if you don’t mind, we’d also like for you to take this short survey on how you feel we have treated you! Have a nice day!

[Final Note to Interviewing Agent: You may also elect to offer the defendant/guest an opportunity to save us all a lot of time and trouble by simply letting himself out the back door….and don’t forget to remind him to take his firearms and suicide belt with him…and please also remember to thank your guest and smile at him, really, really big!]

Tuesday, August 25, 2009

Ethics Investigations of Federal Prosecutors: O.P.R.

Did you know that federal prosecutors have someone to fear, if they violate your Constitutional rights? Of course, they fear a federal judge or an appellate court zapping them for denying a defendant a fair trial. And they should also fear that their state bar may sanction them, too. But there is another person who federal prosecutors fear even more! It is an attorney-investigator from the Office of Professional Responsibility, (or OPR), of the Department of Justice.
Each year, OPR investigates ethics complaints made against federal prosecutors around the country. In a recent year, according to the OPR website, there were over 869 complaints made against government attorneys, including a wide range of prosecutorial misconduct allegations. The complaints included such things as prosecutors withholding evidence favorable to the defense, prosecutors improperly coercing witnesses, and prosecutors misrepresenting facts to the court. Fortunately, not many federal prosecutors violate ethics rules and not many are disciplined by the Attorney General based on these OPR investigations. In a recent year, for example, out of 869 complaints, only 18 federal prosecutors were actually fired or otherwise disciplined.
In my career as a federal prosecutor, I have seen a relatively small number of actual ethics violations. But I know they do occur! For example, I have seen one prosecutor improperly subpoena a defendant to testify before a grand jury. Another prosecutor threatened grand jurors if they failed to indict a case! I could tell you other "war stories!" Believe me, federal prosecutors are not immune against violating defendants' Constitutional rights. It happens! So, in my opinion, I am thankful that OPR exists, just to make the bad apples -- the unscrupulous federal prosecutors --have someone to fear; that is, at least if they get caught!

Sunday, August 23, 2009

"Joke of the Day:" Police Officers, Death and Doughnuts!

White collar crime is a very serious topic. Maybe it's time for a blog entry that's not so serious! Do you like a good joke? Well, there are countless jokes about lawyers out there!

For example: What do you call a thousand lawyers at the bottom of the ocean?.......................... A good start!

And here's another old one, but a good one, about police officers! How can you tell when a cop is dead?................................The doughnut falls out of his mouth!

Have you heard any good, (clean), jokes about lawyers or police officers lately?!

Friday, August 21, 2009

"Paper Cases:" How the Feds Actually Prepare a White Collar Crime Case For Trial!

Let's assume you are a federal prosecutor and that you have used a team of federal agents and scores of federal grand jury subpoenas to gather tens of thousands of documents for use at the fraud trial of an alleged white collar criminal. What do you do with all those stacks of evidence? More particularly, do you want to learn how the feds actually put together a "paper case" for trial?
I can only speak for myself, but as a former federal prosecutor, I oversaw the preparation of numerous complex "paper cases" for trial. And believe me, it can be a daunting task! For example, in my major fraud and public corruption case against State Senator Charles Walker, I personally examined over a million pages of evidence which were used at trial.
The key is organization. In other words, you must first carefully organize your evidence. For instance, I would generally first sit down with my case agent and go through the boxes and stacks of paper evidence, often gathered from scores of banks and other businesses. We would initially identify which exhibits would be helpful at trial, and then begin a list of trial exhibits, which also identified the exhibits' sources. We also assigned a series of exhibit numbers to each group of exhibits, often based on the exhibits' sources, (e.g. the "3000-BA series" would be exhibits from "Bank A"). Next, we would generally decide which exhibits, or pages of exhibits, needed to be scanned so that the exhibits could be shown to trial witnesses, (and the jury), in an effective manner. In this way, we eventually prepared an exhibit list.
Next, we would prepare a witness list. I would discuss with my case agent which witnesses we intended to subpoena for trial. I also needed to begin thinking about witness order, while compiling my witness list. In the Walker case, we prepared a list of over 150 witnesses, (not including records custodians). The witness list, like the exhibit list, will often be modified a number of times before a federal criminal trial.
Finally, in order to prepare a complex federal case for trial, you must "marry" the exhibit list with the witness list! In other words, you have to prepare a new "witness-exhibit list," which contains each of the witnesses and the particular exhibits, now identified by numbers, (out of all the thousands of exhibits originally obtained), which will be introduced, or otherwise used, while each particular witness is on the witness stand. Also, prior to trial, a federal prosecutor will need to decide the order in which each chosen exhibit will be shown to each of the witnesses. (I also made it my practice to laboriously type or write out each question for each of the witnesses, including carefully planning the precise place in each witness' testimony when I intended to show them an exhibit. I found that this thorough pre-trial preparation helped my trials run more quickly and smoothly. Such intense preparation also helped me "not have to think" when I became fatigued during a lengthy federal criminal trial!)
Each trial lawyer has his or her own way of preparing for trial. But these are simply some of the steps I have followed in preparing a complex federal criminal case for trial. So, now you know how the feds, (or at least one former fed), actually do it!

Wednesday, August 19, 2009

Martha Stewart--Would A Different Defense Strategy Have Worked?

In addition to being a former federal prosecutor, (and now being a criminal defense lawyer), I have taught criminal justice courses at a local university for a number of years. In one course, called "White Collar Crime," I have often led class discussions about infamous cases involving public figures. One popular topic involves the Martha Stewart case.
The topic and my question for you, (my bright "blog students"), to consider is: Could she (and her defense lawyer team) have devised a different strategy which might have helped her avoid a conviction and five month sentence for lying to federal investigators about insider trading? I believe Martha Stewart could have won and here's my suggestion about a winning strategy!
(Of course, please let me first emphasize that this is merely a hypothetical "classroom" exercise. Each case is different and a strategy that might work in one case might not work, or be advisable, in another case. And please also let me emphasize that this "classroom" exercise is not intended to impugn either Ms. Stewart, or her fine legal team, or their strategies, in any way!) But after making all these caveats, here's my two cents worth about how the "diva of decorating" might have avoided a jail cell!
If I had been Martha Stewart's defense attorney, I would have advised her to appear and come clean, publicly, from the very beginning. In other words, instead of having a client appear to "stone wall" it, or cover up, with investigators, (or the public), I submit that many public figures should more often consider making a public "mea culpa." In other words, in some circumstances, you should openly admit your mistake and simply say, "I'm sorry."
Isn't it possible that Richard Nixon would have remained president but for his infamous post-Watergate burglary cover-up? Didn't Watergate show that it's the cover-up that gets a public figure into trouble more often than the original crime? Are you listening, John Edwards?
So, in the Stewart case, I might have recommended to her that she should call a press conference, admit that she'd gotten a tip from a close friend about selling her stock, and that, not knowing it could technically violate the law, she had sold the stock. I would also suggest that she would have been better off if she had apologized for not knowing about the fuzzy laws on insider trading, but that she intended to make amends by immediately donating to charity the full value of her benefit from the improper stock sale, (or perhaps several times that amount).
What do you think? While this strategy may sound risky, don't you agree Ms. Stewart could have generated sympathy for her plight by telling the truth in this fashion? And don't you agree that sometimes simply telling the truth, publicly, may the best policy, along with being the best, winning defense strategy in white collar criminal cases?

Tuesday, August 18, 2009

DNA Evidence Can Be Fabricated!

A new article in the online journal, "Genetics," reveals that Israeli scientists have determined that DNA evidence can easily be fabricated! In other words, scientists were able to take a DNA sample from one person and fabricate it to resemble the DNA profile of another person. This new revelation has astounding implications for criminal cases!

Until now, it had been universally accepted that, because each person's DNA profile is unique, such evidence found on a victim or at a crime scene conclusively determined the identity of the bad guy. But now, everything is different! Now, it appears that DNA evidence is no different than any other evidence: a judge and jury must now more carefully determine whether or not someone has been framed by planted evidence!

Another important point to make is that no criminal case is "perfect" and that not everyone who is charged, or who appears guilty is, in fact, guilty! While DNA evidence, properly collected and analyzed, may still be good evidence, it is now clear that it is not "perfect" evidence!

Monday, August 17, 2009

A Proud Day At The Goolsby Law Firm!!!

This is a proud, happy day at our family law firm in Martinez, Georgia! You see, our family of lawyers will be getting bigger! Presently, The Goolsby Law Firm is composed of two lawyers, including me, Richard Goolsby, Sr., and our oldest son, Richard Goolsby, Jr., (a father and son attorney team). And now, we are proud to report that my second son also begins the study of law today! He has three tough years of law school ahead of him, but we wish him much success and God speed! We know he will do well!

I realize that the prospect of new lawyers being released on the world may be a bit unsettling to some of you! But please allow a proud father to boast just a little here!

And don't think that's all the Goolsby lawyers in the works! Our youngest son, a UGA undergraduate, also plans to go to law school in a couple of years, too! And I still tease our youngest child, and only daughter, that she should likewise go to law school, too, just like her three older brothers! But she may be the smartest of them all--she doesn't want to go to law school at all--instead, she wants to become a teacher!

Friday, August 14, 2009

"Rolling Over" in Criminal Cases

This blog article is about "rolling over!" No, I'm not referring to dogs rolling over on the grass. I'm talking about the potential advantages to a defendant in rolling over in a criminal case against his or her co-conspirators!

This topic was a big news item this past week when ponzi king Bernie Madoff's chief financial aide, Frank DiPascali, entered a guilty plea in federal court and reportedly agreed to "roll over" against others allegedly involved in their investment fraud scheme which ripped off investors of billions of dollars.

Every criminal case is different, but the old adage is often true that "the first to squeal gets the deal." The truth is that our criminal justice system promotes this practice of defendants "rolling over" on each other, as part of the plea bargaining process. For example, prosecutors will often focus on the "lower rung" defendants in a conspiracy and offer them a deal if they will cooperate against their higher ups. The point is that, in many cases, (especially if you can't beat the rap), it is often advantageous for a defendant, (after consulting with his defense attorney), to take the deal and squeal.

In federal court, there may be real incentives for a defendant to cooperate with the government. For example, if a defendant faces criminal charges carrying tough mandatory minimum sentences, the only way for him to avoid that mandatory minimum, (aside from beating the rap), is to cooperate and convince the federal prosecutor to file what is known as a "5K1.1 motion." This motion, filed by the government on behalf of defendants who have provided "substantial assistance" in the investigation of others, allows the sentencing judge to "depart downward" below the mandatory minimum sentence. So, "rolling over" is a big part of our criminal justice system and ratting on others has its rewards.

Do you believe defendants rat on each other more today than they did 25 or 50 years ago? Is there still left any "honor among thieves?!"

Tuesday, August 11, 2009

How Can You Represent A "Guilty" Person?

You might wonder if the transition from career federal prosecutor to criminal defense lawyer was difficult for me! I am often asked, "How could you represent someone you know is guilty?"
Well, the transition from prosecutor to defense lawyer was actually an easy one for me! You see, I have learned, over the years, that our criminal justice system, as an adversary system, is sort of like a tug of war. In other words, to work properly, our Constitution and court system require good, strong advocates, both prosecutors and defense attorneys, who are both pulling hard on their respective ends of the rope. It is in this struggle that, in theory, the truth emerges.
I have also learned that, sometimes, a defense lawyer isn't merely trying to "get someone off on a technicality." Each case is different. Often, the defense attorney is simply trying to get a fair result, or sentence, for someone who has admittedly made a mistake and accepts responsibility for their crime.
I have also learned that, sometimes, the police overcharge defendants and that, sometimes, overly zealous police or prosecutors are overly aggressive in the pursuit of "justice." For example, while a defendant may have committed one burglary, the police department may want to "clear the decks" by dumping all their unsolved burglaries on the one hapless defendant. Our Constitution therefore depends upon strong defense advocates who will aggressively fight against such injustices and make the government prove its case, and do so properly. Sadly, over the years, as a former prosecutor, I have seen defendants' rights stepped on, over and over again, by both police and prosecutors. That's the real world, folks!
I have also seen, especially in white collar crime cases, that sometimes the defendant is only technically guilty because of a maze of ambiguous government rules and regulations. Just as defendants shouldn't "get off on a technicality," they likewise need a good, experienced defense attorney to make sure they don't "get convicted on a technicality" either!
And I have also seen that even the fiercest law and order advocates always want a good defense attorney when it's their own loved one who is in trouble!
Finally, if you ask me how I can defend a "criminal," I will respond that I have also learned that, sometimes, the government makes mistakes! More simply put, as a wise old judge once told me, "Richard, sometimes people are, in fact, innocent!"
So, don't you see, I have no problem at all in representing a so-called "guilty" person! Our Constitution and our adversary system depend upon it. For each of these reasons, our family of defense attorneys at The Goolsby Law Firm will continue to fight the good fight and we'll just keep on tugging on our end of the rope!
What do you think? Does our adversary system work? And how about you, could you represent a person accused of a heinous crime?!

Monday, August 10, 2009

The Grand Jury: A Federal Prosecutor's Tool

Much has been written about grand jury abuses. But not many people really understand the role of the federal grand jury in a federal criminal investigation. In particular, not many people really know how federal prosecutors utilize the federal grand jury as a tool to help make a federal criminal case. Do you want to learn from a former federal prosecutor what really "goes on behind closed doors?!"

Unlike state prosecutors, federal prosecutors, or Assistant U.S. Attorneys, (often called "AUSAs"), are very active participants in federal criminal investigations. That was one part of being an AUSA that I loved! Working closely with federal agents, AUSAs help prepare grand jury subpoenas for business records. Also, AUSAs help plan which witnesses to take before the grand jury. For instance, during an investigation of corporate fraud, if the corporate defense attorneys won't allow interviews of corporate employees, an AUSA may get around this obstacle by issuing grand jury subpoenas to the corporate employees and taking them to the grand jury. In addition, AUSAs will often decide to take recalcitrant, uncooperative witnesses before the grand jury where they can be locked in as to their testimony, under oath. Then, if a hostile witness later "breaks bad" at trial, the AUSA can use a transcript of their prior grand jury testimony to impeach them! These are some of the ways in which federal prosecutors use the federal grand jury as a legitimate tool in federal grand jury investigations.

So, now you can see how the federal grand jury plays an important role in federal criminal investigations, and you can better understand the role of a federal prosecutor in relation to the grand jury. And now, you also really know what "goes on behind closed doors!"

Friday, August 7, 2009

Federal Grand Jury Target Letters

In the last blog article, we discussed what you should do if you are served with a federal grand jury subpoena. But what should you do if, instead of a receiving a subpoena, you receive a "target letter?" In federal grand jury practice, a target letter typically informs the recipient that he or she is a target of a grand jury investigation and that a federal prosecutor has decided you are a potential defendant. In addition, the federal prosecutor has decided to "invite" you to appear before a federal grand jury and see if you will incriminate yourself! So, what should you do?
The answer is: RUN to your (criminal defense) lawyer! In other words, receiving a target letter, which informs you that you may be indicted on federal criminal charges, is a very serious matter! Your criminal defense attorney should be an attorney who is experienced in federal court and in dealing with federal prosecutors. An experienced criminal defense attorney will contact the federal prosecutor, find out what is going on, and attempt either to obtain some concessions from the government, or perhaps "decline" the "gracious" invitation to appear before the grand jury.
In any event, if you have received a grand jury target letter, it is absolutely imperative that you seek legal help as soon as possible! You have a target on your back and need an attorney!

Thursday, August 6, 2009

Grand Jury Subpoenas -- "Come On Down...!"

Here's a scary hypothetical for you to consider: Let's assume you are an executive who works for a home health care agency. For some time, you have suspected that your supervisor may be submitting some questionable billings to Medicare, but you have no proof. And then, one evening, you are visited at home by two F.B.I. agents who hand you a federal grand jury subpoena! What should you do?

In my opinion, you should call an experienced federal criminal defense attorney. And preferably, you will call a white collar crime defense lawyer who has extensive federal grand jury experience. In another blog article, we will discuss how the feds use the grand jury as a tool to investigate criminal cases. But the important point here is that, if you have been served with a federal grand jury subpoena, you should treat it as a very serious matter and get experienced legal help as soon as possible! One thing an experienced lawyer will do is to contact, on your behalf, the federal prosecutor, and/or the F.B.I. agents, in order to clarify your status as a grand jury witness, subject, or target. If your attorney learns that you are a target of the federal grand jury investigation, then he or she may attempt to obtain some concessions from the government in exchange for your cooperation. Many other possible scenarios may exist, but it is important, at this juncture, for your lawyer to learn as much as possible about your status BEFORE you go before the grand jury to testify. Hopefully, your lawyer will learn that you are not a target and that you are viewed by the government only as a witness. Even so, perhaps your lawyer can still confirm your status in writing.

So, the bottom line is: Federal grand jury subpoenas are serious matters which require the attention of an experienced federal criminal defense attorney. Call your lawyer promptly before you "come on down" as the "next contestant!"

Wednesday, August 5, 2009

Mail Fraud and Wire Fraud

Do you know how the feds really catch white collar criminals and how the cases are often charged in federal court? The answer lies in the use of the U.S. mail by white collar criminals.

Years ago, Congress made it a federal crime, (in 18 U.S.C. 1341), to use the U.S. mail to help further a fraudulent scheme. This federal crime is known as mail fraud. Thus, any time someone sends a fraudulent solicitation or bogus claim in the mail, they may have violated the federal mail fraud statute. In addition, Congress also made wire fraud, (18 U.S.C. 1343), a federal crime. Therefore, any time a con artist makes a telephone call or uses the internet in furtherance of his scam, he has likewise violated federal law and may be visited by an F.B.I. agent.

And don't think you can get away with your crime simply by sending your bogus claims via federal express. Congress also included use of common carriers in the mail fraud statute, too! So, maybe you should just use "donkey mail," if you want to avoid a date in federal court!

Tuesday, August 4, 2009

Joke of the Day--The Bank Robbery Sentencing

The story is told of a bank robber who once stood before a tough, hanging judge for sentencing. The judge announced, "I sentence you to serve 70 years in prison."
The bank robber said, "But judge, I don't think I can make 70 years."
And the judge replied, "Well, just make it the best you can!"

Monday, August 3, 2009

Differences Between State and Federal Crimes

Do you understand the difference between a state crime and a federal crime? Most crimes are state crimes which are investigated and prosecuted by state and local officials. For example, murder, rape, robbery, shoplifting, and most other thefts are typical state offenses which would go through your state trial courts and be prosecuted by a state district attorney. Typically, federal crimes, on the other hand, are a narrower classification of crimes that have been carved out by Congress as federal offenses due to some perceived federal nexus or interest. The most common way to tell the difference is whether or not the crime has an interstate connection. For example, as to kidnapping, Congress has made it a federal offense if the victim is transported in interstate commerce, i.e. across a state boundary. (On the other hand, if the kidnap victim is not taken across state lines, it would remain a state crime and be prosecuted by a state prosecutor). As to thefts, where it is prosecuted will generally depend upon whether or not the accused has transported the stolen automobiles or other merchandise across state lines.

Bank robbery is another example of a crime carved out by Congress as a federal offense, because most bank deposits are federally insured.

In many cases, a crime may be in violation of both federal and state law. For example, many drug cases implicate both state and federal law. (This is called concurrent jurisdiction and will be addressed more fully in a later blog article). In such cases, generally, the more serious drug cases with interstate connections will be prosecuted in federal court. As a former federal prosecutor, I would often contact my state counterpart and we would decide together which one of us should take the case.

So, the bottom line is: if you want to avoid being prosecuted in federal court, then you had better avoid crossing the state line! And even then, you had also better hope you haven't committed an offense in which Congress has found a federal interest!

Sunday, August 2, 2009

Is White Collar Crime as Bad as Street Crime?

Is white collar crime as bad a problem as "street crime?" What do you think?

For years, in addition to prosecuting fraud and public corruption as a federal prosecutor, I have also taught a course, part-time, on white collar crime at a local university. All of the authors of the textbooks we have used in the course consistently sing the same refrain: that "crime in the suites" is generally as serious, or more serious, as "crime in the streets." For example, in "Profit Without Honor," Stephen Rosoff points out that the cost of bailing out just one financial institution has exceeded the combined costs of all bank robberies in the history of the United States. In addition, consumer advocate Ralph Nader has coined the term "delayed violence" to illustrate that, in many cases, such as a polluting plant which dumps cancer-causing chemicals into our air or water, the costs of white collar crime are very severe, but the public simply doesn't realize or see the problems until a number of years have passed.

So, maybe it's just a public perception problem. Perhaps white collar crime is more costly to our society in the long run, but its costs are often just more difficult to perceive, in contrast to a bleeding victim lying in the street. But what do YOU think?