Thursday, April 16, 2009

Federal Prosecutors Feeling the Heat

Persons practicing in the White Collar Crime area, including the federal tax crime area, have viewed with great interest the recent mutiple missteps by federal prosecutors in major criminal prosecutions. In the tax area, we were treated to the KPMG prosecution where the Government forced KPMG to quit paying attorneys fees and suffered the dismissal of 13 defendants when the Judge called foul. It was bad enough that the Government had engaged in that sort of extortion, but worse when the prosecutors dissembled about it in trying to get the judge to avoid looking into the sordid conduct. Happenings of the same genre -- convict at any cost -- seem to keep surfacing. E.g., the whole Senator Stevens prosecution involving the prosecutors' Brady disclosure violations among other footfaults. Today's Wall Street Journal has an interesting article here on the abuses in the disclosure area and how to mitigate them.


  1. Jack,

    In my humble opinion, prosecutors are not mere advocates before a court. They are ministers of justice. Accordingly, they must be held to a much higher duty than their non-prosecutor counterparts in the bar.

    In our republic (singularly as the federal USA political entity and collectively as respective states or commonwealths), the citizenry has vested in its servants substantial powers to conduct the day-to-day affairs of our government. Within this rather broad grant of powers is the power to administer justice by, among other things, investigating and prosecuting those suspected of committing criminal offenses. To be certain, these powers are subject to clear and intelligible standards, including limitations on the actions of government actors under our federal and state constitutions. Accordingly, our citizens, as "grantors" of this species of a "durable power of attorney" can modify or revoke such powers through their appropriate resort to the various adjudicative and political processes (for example: challenging the constitutionality or invalidity of laws and regulations in the courts, jury nullification, petitioning our governmental actors, voting in regularly scheduled elections, and as we saw earlier this decade with the recall California's Governor, recalling elected officials).

    One time-honored but perhaps greatly underutilized method of checking prosecutorial abuses is resort to what I would humbly consider to be a defendant's top-secret constitutional right: jury nullification. By this I mean that the jury "nullifies" the prosecutor's abuse of power by accepting defense counsel's invitation to weigh the evidence, apply the law as given by the presiding judge, use their common sense, and find that, as a purely factual matter, the prosecution has not "super proven" its case against the defendant "beyond and to the exclusion of every reasonable doubt."

    I would suggest that this approach to "jury nullification" is one that honors the law as well as the jury's and the presiding judge's respective roles.

  2. Anonymous,

    You approach of jury nullification through the back door of "super proven" is interesting. At the risk of oversimplification of what the jury does in a criminal case, I had always imagined that "beyond a reasonable" doubt meant perhaps 90-95% certainty. The standard jury instruction (variously worded) is that certainty is not required, but a very high probablity of certainty is required. What is that standard? I will try to answer that question in a blog today which will be from the current in process version of the next edition of my Federal Tax Crimes Book.

  3. Jack,

    Thank you.

    In my humble opinion, no matter what terms a given Court has for the standard of proof beyond and to the exclusion of every reasonable doubt (such as "an abiding and unwavering conviction to a moral certainty"), I believe that it all comes down to defense counsel's attitude that his or her client arrives in Court each day clothed with the presumption of innocence. That presumption abides until such time as members of the jury, having heard all the evidence as well as the argument of counsel, enter into deliberations, and are so moved by the sheer weight and quality of the evidence that they have reached their collective decision that guilt has not only been proven, but, more importantly, "super proven."

    Strategically and tactically speaking, I believe that one must approach the concept of "super proof" right from the very beginning, meaning before an Indictment is even returned. Those stages (with corresponding strategic and tactical opportunities) include:

    1. Administrative Investigations such as the IRS's CID's investigation and their review process within the local/regional offices of the IRS's Office of Chief Counsel's organization, and if there is a referral to the US DOJ, the "front office" of their Tax Division for the appropriate region, and if there is a further referral for presentation to a grand jury, the appropriate assistant US Attorney.

    2. If the government initiates a prosecution and arrest by a pre-indictment complaint, I believe that a full-course probable cause hearing should be explored in order to put adverse witnesses on the stand and lock-in their stories.

    3. Once an indictment has been returned, I would suggest utilizing an "Arraingment" as an opportunity to put the prosecution as well as the presiding judge or magistrate to their respective burden of clearly and distinctly advising the defendant's of nature of the accusation as contemplated not only by the rules of criminal procedure, but, more importantly, by the Sixth Amendment.

    4. Post-Indictment and Post-Arraignment, I would suggest resort to litigating pre-trial motions aimed at getting discovery, suppressing evidence and their fruits, excluding incompetent evidence, and pinning down the prosecution as precisely as possible through a series of motions for initial as well as supplemental bills of particulars.

    5. At the threshhold of trial, motions in limine, proposed jury questionnaires, proposed jury instructions and trial briefs can serve significant strategic and tactical purposes. I cannot emphasize too strongly that, in the federal court system, counsel specifically request the opportunity to voir dire the venire.

  4. Continuing from the previous post

    6. As for voir diring the venire, I would humbly, yet strongly suggest that counsel place the concept of "super proof" in the venire's as well as the selected trial jury's mind early, often and consistently. In other words: tell 'em what ya gonna tell 'em, tell 'em, tell 'em what you told 'em, and tell 'em all times without confusing or insulting them.

    7. Lastly, and perhaps most importantly, I would strongly suggest "pre-handling" the matter that there will be plenty of "side bars" with the venire as well as the actual trial jury in substantially the following fashion:

    "Ladies and gentlemen, in our nation's court system, we have 2 very distinct and separate functions. The judge, up there, high up on the bench is, with all respect his/her honor as well as to you members of the jury, the law giver. He/she will give you the law. You must accept the law as given. And in that vein as the "law giver", he/she...the judge, will have on-the-record conferences...meetings..."side bars" at the judge's bench with counsel along with the court reporter. You are not supposed to hear what is going on because it is legal argument and all legal matters are left with the judge. Now, when it comes to you, members of the jury. You are here to decide the facts. The judge cannot and certainly will not intrude on your role of being the only ones that decide the facts. It is all up to you. When you retire to the jury room to deliberate and to decide the facts of this case, no one, including the judge is allowed to hear what is going on. You will do your jobs with the utmost privacy. We all guarantee that to you. So, wrapping up hear, we all ask you to give respect to the private legal arguments that go on between counsel and the judge at his/honor's bench because, rest assured, his/her honor, myself, opposing counsel, and all of us for that matter, will respect the privacy of your deliberations behind closed doors."


    Holding the prosecution and the presiding judge and magistrate to their respective burdens under our system requires a sharp mind, a grasp of the nuances of the law (especially, the requirements of our rather fluid creatures of due process of law (both procedural and substantive) and the equal protection of our laws), and the attitudinal disposition to put these governmental actors to their burden to carry out their clear legal duties to not only uphold the law in general but preserve the defendant's rights and privileges in particular. Along these lines, I believe that one must be on the look out for strategic and tactical opportunities to bring the prosecution's case (on a count-by-count or item-by-item, line-by-line, if necessary) to an end.


    I cannot emphasize too strongly that a tax/white collar criminal defense attorney's client depend on that professional's knowledge and disposition to apply that knowledge to preserve the client's right to the enjoyment of life, liberty and all vested as well as contingent property interests.

  5. Anonymous,

    And thank you.

    I suggest that you post your comments to the new blog post I did today on Beyond a Reasonable Doubt. You could just cut and paste it over or change it as you may see fit. One of the problems with the comment is that the search feature in the upper left corner of the blog apparently does not search comments. So excellent comments buried in old blogs may not ever be seen unless they are directly related to the topic of the blog itself so that a search will pick up the comments with the blog.

    Jack Townsend

  6. Jack,

    Thanks for letting me know about your new blog post on "Beyond a Reasonable Doubt." I will post my comments on that blog.

    One other thing: I am doing my homework in order to post some comments on your blog posting entitled "Economic Substance in Tax Crimes." I will focus on the applicability of Cheek and more importantly, on our constitutional right to substantive due process, which I firmly believe that, when it comes to offenses that are "in probibitem", requires "definiteness" in order to reasonably apprise a man or woman of common understanding as what conduct our society requires.


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