Friday, August 20, 2010

Blago's Bloviating Blunder

By now, everybody has probably heard* that former Illinois Governor Rod Blagojevich nearly beat the federal criminal case against him earlier this week. In other words, there was a hung jury on all but one count against him--a charge of making false statements to a federal agent. But here are some valid reasons why, in my opinion, Blago is making a big mistake in making the rounds and boasting on the t.v. talk and news shows, while protesting his innocence and daring the government to re-try him on the "hung jury" counts.

First of all, Blago probably should be careful about sticking his finger into the eyes of the federal prosecutors in his case! Not only will they "make his day" by re-trying him, but also they will likely "make his day" by seeking the maximum sentence if he is convicted on the additional counts.

Second, did you know that, in federal court, the judge may consider, as "relevant conduct," even the conduct in acquitted counts in imposing sentence!? The bottom line is that, even though Blago was convicted only on one count, under the federal sentencing guidelines, the judge may zap him as though he was convicted on all counts!

Finally, as a criminal defense lawyer, (and former federal prosecutor), I would be afraid for such a client like Blago--afraid that the sentencing judge may see him boasting on t.v. and want to "make his day" by sentencing him to the maximum, too!

So, somebody out there, (hopefully, his own criminal defense lawyers), should, in my opinion, tell Blago to stop his boastful bloviating!
[*No, the use of the black and white picture of Blago above does not mean that he just got voted off the t.v. series Big Brother, too! It's just the easiest picture I could find! Besides, Blago could probably win Big Brother, don't you agree!?]

Thursday, August 19, 2010

Roger Clemons: Grand Jury Leaks and Other Foul Balls

Do all of you know who Roger Clemons is? He is the seven time Cy Young award winning pitcher who won an amazing 354 baseball games. A lot has been written in recent years about whether various baseball stars, like Clemons, used steroids. But that is not the point of this post.
I'm sure we all would agree that it is a crying shame if baseball greats, such as Barry Bonds or Roger Clemons, used steroids in order to enhance their performances on the field.
And I'll bet we would also all agree that if, during his 2008 testimony before a Congressional committee, Roger Clemons lied about his having never used such substances, then that would be a crying shame, too.
But I hope we would also all agree that it is a crying shame that, today, the New York Times, and other news sources, are reporting that a federal graund jury has already indicted Clemons for perjury during his 2008 testimony.
Whether or not the report turns out to be true, it is outrageous, in my opinion, for there to be leaks from the government about what has already transpired before the grand jury!
And while I am still on the soap box, I have another "foul ball" I want to complain about, too! As a criminal defense lawyer in Augusta, Georgia, (and former federal prosecutor), I am still wondering about who made the decision, in the first place, for Mr. Clemons to testify without a grant of use immunity to protect him! While every situation is different, and while I admit I don't know all the facts in this situation, I can say that I would almost never allow my client to testify before a grand jury, or before Congress, without some sort of protection worked out in advamce!
What do you think about baseball stars who have used steroids, or about government leaks to the news media?

Wednesday, August 18, 2010

Old Courthouses and New Security Problems

Have you read the news reports about the plans to possibly scrap some of the planned security upgrades at the Fulton County Courthouse (which is located in Atlanta)? You will recall that, about five years ago, Defendant Brian Nichols, on trial there, seized a gun and murdered a superior court judge and two others, while making his escape from the courthouse. But it's sad how people forget such things! Now, five years later, it appears the local politicians there may scrap the needed security upgrades. Maybe a public plea by the deceased judge's widow, as reported in today's Augusta Chronicle, will force the politicians to restore the security changes.
We can hope.

Times have changed. Years ago, when I first became an Assistant D.A. in South Georgia, courthouse security was virtually non-existent. There were no metal detectors and no security command centers. I will never forget an old theft case I tried, which kept the jury out deliberating until late one evening. I recall my looking around the courtroom and realizing that all the Sheriff's deputies had gone home for the day. Only the 83 year old unarmed bailiff, Mr. Sims, remained as "security." And he looked half asleep! Thankfully, the defendant and his family remained well behaved, even after the jury returned a guilty verdict.

But again, times have changed. Today, in most places, defendants are getting more and more violent and dangerous. Courthouse violence has, unfortunately, become much more common.
As a result, here's hoping that Fulton County officials will make the necessary security changes for their courthouse. And here's hoping, too, that Mr. Sims is still alert, and at his post, in that South Georgia courthouse! Hopefully, at least, times haven't changed there!

Monday, August 16, 2010

White Knights, Wet Hens, and Roof Tiles!

This is a blog written by a former federal prosecutor who is currently a criminal defense lawyer in Augusta, Georgia. In this blog, I try to post (hopefully) interesting articles about fraud, public corruption, and other types of white collar crime. I also attempt to describe what our criminal justice system is really like--on the inside -- at the sausage factory!
In this blog, I have always avoided discussions about any clients or about any pending criminal cases. And I will stick to that policy here now, too.
But that doesn't mean that I can't vent a little bit, in general, about the proper role of prosecutors! You see, as a former prosecutor, I've been there, done that! I know how prosecutors are supposed to act. But today, folks, (without discussing any criminal case in particular!), I am as mad as a wet hen about the way some prosecutors act! I am so upset that I could jump and bite a roof tile in half!
You see, I strongly believe in our adversary system of justice. Each side -- prosecution and defense -- has a proper role to play. I also believe that it is appropriate, as Justice Sutherland once said, for prosecutors to "strike hard blows, but not foul ones." But sometimes, it seems that a few prosecutors have the "white knight" syndrome. They appear to believe that they are entitled to strike hard, foul blows, in the cause of justice! But they are wrong to act this way! And, in my opinion, our adversary system, along with the cause of justice, suffer when this occurs.
I realize that I didn't really explain here exactly why I am so upset, or precisely how the government has struck a foul blow today. After all, I must adhere to my policy! But please allow me this forum and this opportunity to vent about an injustice! And please know that, while I will not stop believing in our adversary system, I will not give up the good fight against injustices either! There, I feel better!
Do you know of any examples of injustices in our court system? Do you believe our criminal justice system gets it right most of the time?

Wednesday, August 11, 2010

Former Illinois Congressman Dan Rostenkowski Passes Away

Another prominent former politician has died this week. Various news reports indicate that former long-time Illinois Congressman Dan Rostenkowski passed away at this home earlier today. The 36 year Congressman was noted for many positive things, including his support of the 1986 Tax Reform Act.
Unfortunately, Rostenkowski will also be remembered for serving 17 months in federal prison following a mail fraud conviction. The Congressman got into trouble for using the House of Representatives' post office as a means of funneling taxpayer money for gifts to friends and associates.
As to his federal crimes, the Huffington Post notes today that, at that time, noted author and columnist Mike Royko had essentially described his offenses as "nickel and dime" stuff, which would not have been prosecuted back when Rostenkowski had first come to Congress. However, in the mid-1990's, when the Congressman was prosecuted, times had changed. According to Royko, Rostenkowski made an inviting target for federal prosecutors looking for a "big trophy" to put on their wall! (As a former federal prosecutor, I found Royko's observations to be entertaining!)
In 2000, shortly before leaving office, former President Clinton granted Rostenkowski a full pardon.

Tuesday, August 10, 2010

Senator Ted Stevens Reportedly Dies in Airplane Crash

Various news reports today indicate that Senator Ted Stevens, the former long-time Senator from Alaska, has died in an Alaskan airplane crash. Whether you liked or disliked his politics, you must admit that Stevens led a remarkable life. In addition to being the longest serving Republican Senator in U.S. history, Stevens had a number of other interesting aspects to his life and career.
For instance, Stevens reportedly had survived another airplane crash a number of years ago.
In addition, the former Senator had also survived a prosecution by the federal government for alleged violations of the Ethics in Government Act, based upon his failure to report some gifts. Even though he was convicted by a jury, Stevens' convictions were later thrown out, last year, following the discovery of serious prosecutorial misconduct by the government prosecutors in his federal criminal case.
As a former federal prosecutor, I also appreciated Senator Stevens, in part, because he was a champion of rights and benefits for government employees.
At this point, not many details have been released about the airplane crash. Again, no matter what your politics, hopefully, we can all send well wishes to Senator Stevens' family and to all the others who are a part of this tragedy.

Tuesday, August 3, 2010

Interviews With Federal Agents: The Good, The Bad, and the Ugly

Today, let's talk a little bit about what you should do if a federal agent comes into your place of business, shows you their credentials, and asks you for a few minutes of your time. What should you do?
As a former federal prosecutor, (and currently, as a criminal defense lawyer in Augusta, Georgia), I can tell you that you should, at a minimum, be careful about how you proceed. Naturally, if it's merely an F.B.I. agent who is canvassing the neighborhood for leads on a bank robbery, then you may feel comfortable in cooperating with them, (unless you are the bank robber, of course!)
In such circumstances, cooperating with law enforcement may often be a "good" thing. But there can, in some situations, also be some "bad" and really "ugly" possibilities, too!
For example, if you are not an innocent bystander, but, instead, you are a target of a federal grand jury investigation, then you should, in my opinion, always contact an experienced federal criminal defense attorney before you talk with anyone. Let's face it, anything you tell a federal agent can and will be used against you. But there is more! Did you also know that if you knowingly make a false statement to a federal agent, then you could also be charged with the federal criminal offense of making a false statement. Also, you could, in some situations, even be charged with obstruction of justice!?
So, that's the good, the bad, and the ugly about talking with a federal agent! Again, in many of these situations, the point is that it would probably behoove you to consult with your own criminal lawyer BEFORE you talk with anyone else!

Monday, August 2, 2010

The S.E.C. and Government Fraud

This blog, by a former federal prosecutor, (and currently, an Augusta, Georgia criminal defense lawyer), focuses primarily on issues involving fraud, corruption, and other federal and state white collar crimes. But news reports of a civil fraud complaint filed by the Securities and Exchange Commission have also caught my eye.
Various news reports indicate that the SEC has filed a fraud complaint against two Texas billionaire brothers, Sam and Charles Wyly. The complaint accuses them of concealing $550 million in gains from the sales of stock. Allegedly, the brothers tried to hide stock ownership and trades through the use of off-shore, (Cayman Island), trusts and other entitities.
Now, I realize that not many of you will feel sorry for anyone who is a billionaire, particularly one who is accused of fraud! However, it is important to point out the lawyer for the Wyly brothers has maintained his clients' innocence. The attorney has also indicated that this complaint filing by the SEC comes only after years and years of endless, fruitless investigations by the government.
The Wyly brothers are well known both for their innovative skills in technology, energy, and investment, and for their incredible philanthropic work. Sam Wyly is also author of the book, 1,000 Dollars & An Idea, depicted above, which is an inspirational account of his achievements.
Look, I have no clue about the efficacy of this particular case. But frankly, it wouldn't surprise me to see that the Wylys' attorney is correct. As a former federal prosecutor, I know how government agents and agencies work. If they investigate somebody, and expend significant resources over a long period of time, then the bureaucratic tendency is for them to want to charge "somebody with something," even if it is not always justified.
It will be interesting to see what happens next in this case!