BP Settles Criminal Case With DOJ

[Official BP Logo depiction from wikipedia] 

Yesterday, we learned more about the anticipated resolution of criminal charges by the BP Oil Company with the Department of Justice. The charges, of course, relate to the Gulf of Mexico oil spill--the worst offshore oil spill in U.S. history. According to news reports, BP has settled its own (corporate) criminal liability by pleading guilty to felony misconduct and agreeing to pay a total penalty of about $4.5 billion over the next six years.

This announcement by the U.S. Department of Justice pertains only to BP's corporate criminal liability. Other criminal charges against several executives, along with some civil claims for damages, remain unresolved.

What do you think about this resolution, which is the largest monetary penalty imposed in U.S. history? Was it enough?

DOJ Strikes Out at Second Roger Clemens Trial

[Photo of Roger Clemens from wikipedia]

It appears that, following the not guilty verdict in the John Edwards trial, the Department of Justice has struck out yet again in another high profile criminal trial. This time, it is the Roger Clemens trial. 

Today, various news reports indicate that Clemens, the former professional baseball pitcher, has been found not guilty on all counts by a federal jury in Washington.  As you will recall, Clemens was charged with allegedly lying to Congress in 2008 about his alleged lack of steroid use while a pitcher. You may also recall that an earlier trial of Clemens, last year, ended in a mistrial, after government prosecutors offered inadmissible testimony.

Now, following two trials, and following the expenditure of millions in taxpayers' dollars, another high profile defendant has been acquitted.  As a former federal prosecutor, and, currently, as an Augusta, Georgia criminal defense lawyer, I don't know exactly where the government went wrong, but it surely is a shame to see such a waste of scarce tax dollars on criminal cases which probably should never have been brought in the first place! Don't you agree?

Presidential Pardons, Denials, and Transparency

An interesting appeal is presently pending in federal court in Washington, D.C. According to the Daily Report, the appeal involves a petition by a retired Washington Post reporter who is seeking information via a FOIA (Freedom of Information Act) request to the Department of Justice concerning cases in which pardon requests have been denied in the past. The reporter won in the district court, but, inexplicably, the Justice Department is now appealing the decision.

The Department of Justice has a process whereby convicted federal felons can apply for a presidential pardon through DOJ's Office of the Pardon Attorney. The retired reporter is apparently writing a book about the history of the clemency process. As you will recall, in the past, various Presidents have gotten into hot water for granting some controversial pardons or clemency petitions shortly before they have left office. For example, you will recall that, during his confirmation hearings, current Attorney General Eric Holder was forced to back-peddle and explain his support of a last-minute pardon granted by President Bill Clinton of fugitive financier Marc Rich.

Current DOJ policy provides that pardons which are granted are revealed, but pardon denials are not. Again, the Obama/Holder Department of Justice is fighting the reporter's request to reveal the additional information about the pardon denials. "Pardon me," but why is DOJ fighting this? I don't know and I don't agree. So much for transparency.

It will be interesting to see what happens in this appeal.

On the Soapbox: The DOJ and Statistics

Okay, I realize that, just two posts ago, I complained about the unreliability of crime rate statistics. But I still have one more rant in mind concerning the topic of crime statistics. This rant concerns the myopic focus of the United States Department of Justice in emphasizing crime statistics too much. In other words, I am back on the soapbox today to complain about how, in my opinion, the DOJ inappropriately pushes each U.S. Attorney's Office around the country to focus more on the quantity of cases, rather than on the quality of cases, which each office prosecutes. In my opinion, DOJ does this in several ways.

For example, in recent years, DOJ, which oversees all 94 U.S. Attorney Offices around the country, has increased the statistical reporting requirements by each office. For instance, each U.S. Attorney's Office is periodically required to submit meticulous records to DOJ in Washington as to the number of hours spent by each Assistant U.S. Attorney, (and each U.S. Attorney's Office), along with the numbers and types of each of the criminal cases prosecuted. Then, DOJ crunches these numbers and they can (and do) "encourage" some of the offices with lower numbers to increase their numbers in certain crime categories, or else the U.S. Attorney's Office may lose funding for prosecutor positions! In other words, in my opinion, as a result, the focus of the federal government is now more on case numbers than on case quality or outcome.

In addition, DOJ periodically sends out evaluation teams to each U.S. Attorney's Office around the country to ensure that each office is complying with DOJ priorities. While, in some ways, such evaluations are a good management tool, the problem is that it promotes each U.S. Attorney's Office to "do what Washington expects," even if local crime problems present different challenges than Washington's "cookie cutter" approach. And the consequences of not following DOJ's directives can be serious: again, DOJ will not only castigate a non-compliant U.S. Attorney's Office in writing, but may also withhold some funding of U.S. Attorney Office positions.

Finally, one of DOJ's real problems, in my opinion, is the fact that, in evaluating its crime statistics, the DOJ also generally rates each criminal case, both large and small, just the same. For example, generally speaking, each small gun trafficking case is considered a "number," just the same, for many statistical purposes, as each large gun trafficking case. And the same is true for every fraud case, drug case, and for criminal cases in every other crime category. As a result, (although presumably each Office will try to do the right thing), there is no incentive from DOJ for the U.S. Attorneys' Offices to devote significant resources to large, complex cases, since DOJ will not give that office any more statistical credit for working on the big federal criminal cases. And if you work on a few large cases, then you may get penalized if you then have less time to boost your small case stats! So, what would you guess the U.S. Attorneys' Offices are going to focus on -- more small cases or a few large cases?

As a former federal prosecutor, (and current criminal defense attorney), I am concerned that, in the future, we will not see many U.S. Attorney's Offices working on very many long, complex federal criminal investigations. They simply can't afford it because DOJ's approach simply doesn't encourage it. Instead, the trend is toward U.S. Attorney's Offices focusing more on small drug cases and other quick, "slam dunk" types of cases, so that they can generate large case numbers to please Washington, and keep their resources!

So, that is why I am on the soapbox today! In my opinion, DOJ's "numbers" policy encourages the prosecution of the "little fishes" and may let the "big fishes" get away! So, after 20 years of working for DOJ, now you can see why I am sick of crime statistics! What do you think?