Monday, November 30, 2009

Tiger Woods Part II: A Point of Clarification!

In the last post, I tried to make the point that, assuming someone in Tiger Woods' position elects to talk with the police, (after consulting with his criminal law attorney), he should avoid telling anything but the truth. In other words, as in cases like Martha Stewart's, sometimes it's the making false statement or obstruction of justice charges that cause you more problems than the underlying offense. However, it should also be pointed out that, in many criminal investigations, it is simply best not to talk with the police at all!

Sunday, November 29, 2009

Tiger Woods: Please Avoid the Sandtrap!

As of this writing, Tiger Woods has been discovered bleeding and semi-conscious in the street outside his Florida home. His wife has reportedly told authorities that she broke the rear window of his Cadillac SUV, after she allegedly heard him have an auto accident outside their home at 2:30 in the morning. The Enquirer reports, (i.e. gossips), that he has allegedly engaged in an affair. Thus far, Tiger has refused to talk with police. Yes, these and other facts all sound suspicious. But this isn't a celebrity gossip blog! And such gossip is not our business and not the point of this post!
So, let's just focus here on a point I tried to make in an earlier post, (and illustration), about Martha Stewart. You may recall that I observed that, if Ms. Stewart had simply come clean and told the truth, in the beginning, about receiving the insider trading tip, she might have avoided prosecution. And the point here is that, in my opinion, Tiger should simply tell the truth. In my opinion, the worst thing that Tiger can do at this juncture is to lie to the police, (and public). In my opinion, this will only lead to a long, drawn out police investigation and potential police charges for making false statements. Instead, I hope that Tiger will, perhaps through his attorneys, find a way to cooperate with authorities and tell the truth to avoid further legal problems.
Tiger Woods has always shown sound judgment and impeccable integrity. His judgment on the golf course is unsurpassed. Here's hoping that he will likewise avoid the potential traps and show good judgment off the golf course, too!
What do you think?

Wednesday, November 25, 2009

Happy Thanksgiving!

From our family, (at The Goolsby Law Firm, LLC), to your family: Happy Thanksgiving!

Tuesday, November 24, 2009

Why Insanity is a Lousy Defense to a Criminal Charge

It should come as no surprise to anyone that the criminal defense attorney for the alleged Ft. Hood killer has reportedly announced that his client may offer an insanity defense to the murder charges against him. After all, he has limited options, doesn't he?
But without judging that particular case, please let me explain why, in most cases, in my opinion, insanity is a lousy defense to offer to a criminal charge. First of all, by offering this affirmative defense, a defendant is essentially required to admit that he has committed the acts in question--in this case, murder. And that's certainly not going to make jurors want to let you go, is it?
But the real problem with insanity as a defense also lies in what the defense must show at trial in order to prevail. First of all, you must understand that there is a big difference between medical insanity and legal insanity. In other words, many of us may have (medically) insane relatives, out there walking around, who fail to meet the legal test of insanity! For example, the State of Georgia subscribes, in large part, to the old M'Naughten Rule of insanity. This is also known as the "right-wrong" test of insanity. In short, in Georgia, (reducing this test to its simplest terms), a defendant must carry a heavy burden of convincing a jury that he was so crazy, when he committed the crime, that he couldn't even tell the difference between right and wrong. This is a very heavy burden! As a result, it is almost impossible for most defendants to ever win with this trial defense, because even the sickest individuals generally know the difference between right and wrong!
Finally, as one old judge once observed about a bank robber, "If he was really insane, then why didn't he use a banana instead of a gun to rob the bank?"

Saturday, November 21, 2009

Identity Theft: Could It Happen To You?

Have you, or anyone you know, ever been the victim of identity theft, or identity fraud? If you haven't yet been a victim, then, unfortunately, the odds may not be in your favor. While Wikipedia indicates that, at least statistically, the identity theft crime rate may have dropped in the past several years in the United States, it is also still reportedly the fastest growing crime in this country.
The consequences of identity theft can be devastating. Consider the case of Michelle Brown. This poor woman not only suffered the impact of the loss of her credit rating, but also was forced to address an arrest warrant after a thief stole her identity and went on a credit card-spending frenzy. Can you imagine the devastating impact on your own life if you were arrested and falsely charged with crimes you did not commit?
So, please protect your personal financial information and check your accounts religiously for unusual activity. Here's hoping you can avoid becoming a victim like Michelle Brown!
Again, do you know anyone who has been a victim? What steps did they take to overcome the problems generated by this crime?

Sunday, November 15, 2009

This is a Sad Day for America: Giving the 9-11 Terrorists a New York "Show Trial" is a Colossal Mistake!

This is a sad day for America. In my opinion, the decision this week by Attorney General Eric Holder to give the masterminds of the 9-11 attack a "show trial" in New York City is a colossal mistake! Here are just a few of the reasons why I believe this decision will prove disastrous:
1. Military Tribunals Are Better Equipped For the 9-11 Terrorists:
Military tribunals are better equipped to handle cases involving terrorists, or prisoners of war. Put another way, these are terrorists, not criminals! They have committed acts of war, not mere crimes, against America! Therefore, in my opinion, bringing these terrorists to American soil for a civilian "show trial" has given them Constitutional rights and protections which they do not deserve and for which the civilian courts are ill-equipped. Just consider a few of the dire potential consequences. The 9-11 terrorists will all be given fine, experienced criminal defense attorneys who, no doubt, will not only be probing sensitive national security secrets, but also finding a way to get these terrorists off on criminal charges! But other problems abound. For example, whether or not you agreed with water boarding and other "enhanced interrogation" techniques, such techniques may mean any confessions will be thrown out at a civilian trial. As a result, just consider the terrible consequences if any of these terrorists beats the rap in civilian court and goes free!
2. The 9-11 Terrorists Also Do Not Deserve a "Show Trial:"
From the very beginning, the 9-11 mastermind, Khalid Sheikh Mohammed, has reportedly requested to be returned to New York for such a trial. In short, the terrorists have desired, from the beginning, the public stage and forum which the Attorney General has now so graciously bestowed upon them. I will predict that, if the 9-11 terrorists have their way in this "show trial," they will make the O.J. Simpson debacle look like a minor traffic court case. But thanks to Mr. Holder, Khalid Sheikh Mohammed will now have the world's stage on which to preach and proclaim his message of terrorism and hate against America.
In short, this is a sad day--a sad day for America and a sad day for the victims of 9-11. Tragically, our current leaders no longer recognize that we are at war. They have pushed the re-set button and, in their 9-10 eyes, the "war on terror" has been abandoned. Instead, our leaders mistakenly view the terrorists as accused criminals who should be coddled and given the same Constitutional rights as American citizens. Indeed, this is a sad day for America!

Thursday, November 12, 2009

Zero Tolerance Policies--Another Look

Doesn't everyone remember the famous scene in the movie Animal House in which John Belushi's character starts a food fight in the college cafeteria? Well, today, such antics might get Belushi thrown in jail, as well as suspended from school!

We recently had a post in which we protested the trend toward rigid, zero tolerance policies in schools around the country. As we pointed out, school children have been suspended, and even prosecuted, for innocently bringing scouting utensils and butter knives to school. But now, another incident has occurred at a Chicago school which again illustrates our point that school boards are sometimes going too far with these policies.

This time, it's a middle school food fight! And this time, two dozen school kids, between eleven and fifteen years old, have actually been arrested and face criminal charges, in addition to school discipline.

In my opinion, this is outrageous! To cart these kids off to jail, instead of simply addressing it as a school matter, is absurd! Suspend them, or even spank them, but don't prosecute them! When will common sense prevail? I think Belushi would agree with me. But what do you think?

Wednesday, November 11, 2009

Two Former Bear Stearns Hedge Fund Managers Acquitted

Did you hear the news yesterday about two former Bear Stearns hedge-fund managers getting acquitted by a jury following a month-long jury trial in federal court in New York on fraud and conspiracy charges? The two men, Ralph Cioffi and Matthew Tannin, had been accused by the government of misleading investors, prior to the collapse of the subprime mortgage market last year. But the jury quickly found them not guilty.
In my opinion, this case illustrates my point that I have made earlier in this blog that, as experienced criminal defense attorneys know, the best criminal defense is to admit the act but deny the intent. The case also illustrates the point that, in white collar criminal cases, sometimes federal prosecutors bite off more than they can chew! Apparently the only thing these two men were guilty of was not having a crystal ball to predict the market collapse.
In this case, government prosecutors also apparently inflated the significance of emails between the defendants in which they allegedly expressed more pessimism about the market than in their conversations with investors. The bottom line is that jurors reportedly decided not to blame the unanticipated collapse of the market last year on these two defendants! While we all may be upset about Wall Street greed and the market collapse, it is good to see that fair-minded jurors could avoid creating scapegoats and render a fair verdict in this case.

Sunday, November 8, 2009

Extortion: "Under Color of Official Right"

The federal Hobbs Act makes it a federal crime for any government official, including police officers, to extort money from citizens "under color of official right." "Under color of official right" simply means that the police officer, (or other government official), has used his or her badge, or official position, as a means to improperly shake you down and take your money.

As a former federal prosecutor, I prosecuted a wide variety of state and local government officials who improperly used their public offices for private gain. For instance, I once prosecuted a social agency case worker who extorted kickback payments from a foster parent in exchange for getting the foster parent a higher per diem payment for taking care of a special needs foster child. Extortion also occurs when a city licensing inspector demands money from a business owner in exchange for "looking the other way" as to city code violations. The examples are endless. But perhaps the worst kind of extortion cases involve crooked police officers who demand money, sometimes alongside the highway, in order to make traffic tickets disappear.

Have you ever heard of similar examples of extortion committed by public officials? Do you believe such extortion is rare?

Friday, November 6, 2009

"Lawyering Up:" A Practical Guide on What to Do and Say If You Are Arrested!

"Each of us is a center of the Universe. And that Universe is shattered when they hiss at you: 'You are under arrest!' " (Alexander Solzhenitsen)

You might wonder why does this blog post begin with a quote from (and photograph of) the late Soviet dissident and Nobel Prize-winning author, Alexander Solzhenitsen. It is because, in my opinion, no one else has ever written more forcefully or eloquently about what is like to be arrested and imprisoned in one of the worst judicial and prison systems in world history.

Maybe you live in the center of your own universe. Hopefully, you live worry-free in a free society. But have you ever wondered how you would react if you were arrested by police for a crime you did not commit? Please understand that, while I wouldn't want to worry anyone, and although it probably will never happen to you, it could happen and, if it does happen, you should know how to react. If you live in the United States, here are a few important Constitutional rights for you to consider in deciding how you would react to a false arrest:

In Miranda v. Arizona, the Supreme Court recognized that, if you are arrested, it will be a very stressful situation and a coercive environment with the police attempting to obtain a confession. As a result, the Court fashioned the so-called Miranda rights which the police are required to advise to anyone who is: (a) in police custody, and (b) who is being interrogated. Everyone knows about these rights, including that "you have the right to remain silent...and the right to the presence of an attorney...." But do you understand how to invoke your rights and make the interrogation stop?

The important point here is that, if you are ever arrested, rightly or wrongly, all you must do, in order to invoke your Constitutional rights and "buy some time," is to "lawyer up" by simply asking the police for a lawyer, and/or telling them you choose to exercise your right to remain silent. The interrogation should stop. (And you should stop talking, too!) Then, after the interrogation has stopped, you can consult with an experienced criminal defense attorney before deciding how to proceed.

Every situation is different and you alone must decide how to handle it. But if you want to know how, as a practical matter, to make the police interrogation stop until you can exercise your Constitutional right to consult with a lawyer, then I hope this post has helped! We are fortunate to have these rights in this country. Sadly, many arrested people throughout the world, including Solzhenitsen, have had no protection of their fundamental rights.

Tuesday, November 3, 2009

Corporate Fraud and Conspiracies: Who Do you Prosecute?

I am sorry about posting again the photograph of convicted ponzi scheme defendant, Bernie Madoff. Based upon his crimes, he doesn't merit the attention! But his fraud case presents a number of interesting issues.

For example, in Madoff's case, it has been reported that investigators are still out there "looking at" some of Madoff's relatives and associates to determine whether to try to lock up anyone else. This raises an interesting question: How do agents and prosecutors determine exactly who all to target in a criminal investigation?

As a former federal prosecutor, I had a fairly simple, straightforward approach. I generally "followed the money" and, unless you were a top executive, or ringleader, who clearly directed and knew about, and directly profited from, the fraudulent scheme, I probably wouldn't try to "make your day" by prosecuting you, even if you had some inkling as to what was going on.

In other words, as a former corporate fraud prosecutor, I generally focused on prosecuting only the primary movers and shakers who put the ill-gotten gain in their pockets and I left alone the salaried, lower level employees, such as secretaries or book-keepers, who merely did what they were told to do. I also generally stayed away from prosecuting family members, unless they were clearly key participants in the fraudulent scheme.

But you need to be aware that other federal prosecutors sometimes utilize a different approach! In other words, I have known some government prosecutors who aggressively target everyone who participated in the scheme. Then, they gamble that they can "roll over" the lower level employees against the top targets. Please don't get me wrong: Prosecutors should be aggressive. However, in my opinion, some prosecutors simply go too far! They allow their own competitive spirit and healthy egos to determine who should be targeted. They also sometimes ignore the human costs.

And can I be honest here? In my opinion, some overly aggressive government prosecutors also lack appropriate human compassion for the people whose lives they are ruining! I will never forget the inconsiderate words of one prosecutor about a target: "It must s_ _ k to be him!"

As a result, if anyone "out there" who is reading this post is a family member or associate of Mr. Madoff, you should get down on your knees and pray that you are being investigated by a government prosecutor who possesses both some common sense and a little human compassion! Otherwise, you may have to face the consequences of being persecuted by a federal prosecutor who is simply interested in putting more notches in his or her holster!

What do you think?