Thursday, March 23, 2017

Judges Matter

Decisions, decisions, decisions. From the time someone finds out they have been indicted or will be indicted there are new decisions to me made every day. Which lawyer should I hire? How will I deal with the stress? What do I tell my friends and family? Should I take a plea deal? Should I change careers? There are no shortage of decisions that need to be made during this time and each one can have lasting ramifications. Similarly, there are decisions made by others that can have an effect as well. Those decisions are generally made by the prosecutors and will include issues such as whether to indict or not, which charges to seek, and what kind of deal they wish to offer.

Ultimately, however there is one variable that is left completely to chance and yet may have the the greatest impact on not only how to proceed with a case but on the outcome of the case as well. It will even influence a decision as to whether to take a plea. That variable is.....the judge. I am not going to pretend to understand the system but the system by which a judge is choosen to preside over a trial is by some sort of lottery or rotation. In any event, from the perspective of the defendant, it is random and it will influence how the case progresses and the decisions that are made.

The first variable that will come up is the pace at which the case moves along. Some judges are happy to give the sides as much time as they need until a mutually acceptable trial date is chosen. Other judges like to move their cases along. It is important to point out that judges get paid the same amount whether a case goes to trial or if it gets resolved. To put that in simple terms, the more cases that get plead out, the less they have to work. Furthermore, if a judge does not have to preside over an actual trial, there is no chance that his decisions at the trial will get scrutinized on an appeal. For this reason, it would seem that judges are happy to wait around to avoid having to preside over a trial. On the other hand, some judges like to clear their calendars and move trials along. For a defendant, whose strategy may be delay, delay, delay, this is not the judge to get! Nevertheless, a defendant with one of these judges will generally have to get his affairs in order faster than someone who has a judge who is not is such a rush.

Each judge has his or her own sentencing tendencies. Remember that sentencing has two components; the maximum per count and a guideline range determined by the crime committed as well as a host of other factors that go into the Pre-sentence Investigation Report. Some judges, if a defendant is found guilty at a trial will stick to the guidelines applicable to the charges. Remember, that the counts in an indictment are usually much more severe and carry harsher sentences that the counts in a plea deal. There are some judges who will simply hand out the maximum allowable sentence if a defendant goes through trial and pleads guilty. There are other judges who are more liberal and lenient when it comes to handing out sentences in spite of a guilty verdict at trial. If a defendant has a judge who tends to not be overly lenient following jury trials, he will often have to give more serious consideration to taking a plea to avoid the risk of a high sentence following trial. Some judges are easy on some crimes but tough on others. It is important to be mindful of all of these facts, and hopefully the defense attorney involved knows enough about the judge so as to advise his client because it is a variable that needs to be taken seriously.

Even when it comes to sentencing the judge matters. There are some judges who view the sentencing phase is almost a mini trial and there are some for whom it is merely a formality. For a defendant who has taken a plea, he needs to be cognizant of these two types of styles. If he has a judge that is willing to give a full hearing, and who has a history of being lenient on white collar crimes, then the strategy is pretty simple. In that scenario, the defendant will simply show sincere remorse, and have his lawyers argue for a variance from the guidelines which in simple terms will mean that they will list the reasons for the judge to consider to give a sentence below what the guideline calls for. On the other hand, if the the judge is not inclined to go below the guideline or be interested in a full blown hearing, it is best to come to a joint recommendation with the prosecutors as to how much much prison time he is willing to serve. There really is nothing to be gained by asking for a downward variance as the judge is unlikely to grant it. Doing so would simply force the prosecution to argue for a harsh sentence and a defendant may end up with a harsher sentence that he would with an agreement.

Finally, there are some harsh judges. Anyone who has spent time in the system knows someone who is sitting in prison for longer than they would absent that judge. These judges' reputations precede them and any defense lawyer would know who they are. If they give variances it is generally to go above the guidelines and not below them. These judges pose the greatest risk when it comes to going through a trial. By the same token, there are judges who are notoriously lenient, especially when faced with a defendant who was willing to plead guilty and accept responsibility for his actions. It may seem counter-intuitive, but, if the goal is to end up with as little prison time as possible, a defendant should give more consideration to taking a plea when a lenient judge is involved. This is especially so when the judge has a record of going below the guidelines.

Another, albeit relatively minor issue to prepare for when speaking of judges is the issue of voluntary surrender or even remaining free on bail pending appeal. Most white collar defendants, whether they plead guilty or are found guilty are given time-anywhere from a month to a year in some cases-to surrender to their designated prison. This allows them to get designated to a prison rather than have to languish in a detention center while waiting to be designated and then have to potentially be transported in less than ideal conditions to the prison itself. For most defendants, this gives them time additional time to get certain affairs in order following the sentencing. Other judges, are not as flexible and will remand a defendant to custody immediately from sentencing. If a defendant gets one of these judges, as I did, he needs to make sure more things are in place before sentencing. There really is nothing a defendant can do about this but the knowledge does allow for him to prepare. The judge will, in all likelihood, make clear his policy at the time a defendant pleads guilty.

There is no point stressing over outcomes that cannot be controlled. This is true from a criminal defendant and holds true when dealing with any of life's difficult situations. The key is to be able to understand those outcomes and act accordingly. The outcome of who will be the presiding judge in a criminal case is no different.




Thursday, March 16, 2017

The Plight of the White (Collar that is)

Anyone who has gone through the "system" comes out with a radically different understanding from what he believed when he went in. When I refer to "The System", I refer to someone who has actually spent in actual prison. While there are plenty of ideas floating around as to how we should fix the system, no one can speak with any expertise without having actually gone through  the system. Politicians can advocate all they want, but the reality is they are reacting to appease various competing interests and are not acting in a proactive manner  that focuses not only on the amount of time incarcerated but even on what happens after prison.

I am not going to go into the inherent flaws in our system of incarceration as I have already gone through many of them in a previous entry ( http://www.whitecollarguru.com/2016/12/does-prison-serve-purpose-and-for-whom.html ). What I am going to assert now is that the system of incarceration in our country is disproportionately discriminatory against the white collar felon. Sure, many will shake their head and say that I am biased and maybe they are correct. After all, there are no minimum mandatory sentences for white collar convicts and of course the average sentence served by a white collar defendant is much lower than that of other crimes. Most white collar felons do all of their time in a camp whereas other convicted felons start out in higher security facilities. Even non violent drug offenders will often start out in higher security facilities. On the surface, my assertion is not only wrong, but is offensive and arrogant as well.

There has been plenty of noise made about prison reform and the need to lower the prison population. Do not think for a second that this is because our elected officials have had an epiphany and realized that there are plenty of people in prison who are not threats to society (there are). No, they do not care about that at all! No, there is no altruism here at all. It is all about saving money. For the white collar felon,  all of the  talk of prison reform and news of presidential commutations brings little solace. President Obama granted 1715 sentence commutations, more than any of his predecessors, during his eight years in office. However, 98% of those commutations were granted to those convicted on drug offenses. According to the Bureau of Prisons, however, drug offenses only make up 46% of the total prison population. In other words, the white collar felon received virtually no benefit from the Obama commutations. Similarly, much of the ideas floating around to reduce prison population are geared to reducing the, albeit unjustifiably harsh, sentences  for drug offenders and are not all all focused on white collar inmates.

Why is this the case? The answer, sadly enough is political. Wall Street bankers are demonized in the media. They are blamed for anything and everything that goes wrong in the economy. The are portrayed by the media, and even opportunistic politicians as greedy predators exploiting the lower classes. Individual defendants are paraded in front of TV cameras as they are arrested or walked into court. On the other hand, drug dealers, those who knowingly exploit their customers' addictions are treated with kid gloves by the media. How often does the media closely monitor the trials and outcomes of these indictments? As a result, legislation that benefits white collar felons is seen as favoring the rich whereas legislation benefiting drug offenses is seen as humanitarian and enlightened.

Just as importantly, and perhaps most importantly, truly reforming the system needs to include what happens after an inmate leaves prison. The system disproportionately penalizes white collar defendants. Let's look at the run of the mill drug dealer who has served five years. Having spent time talking with a few of these people, I am not speaking from the vantage point of a speculator. Drug dealers know exactly what they are doing. They know that they will likely go to prison for what they are doing and are well aware of the risks. Because of this, they are able to prepare more adequately for their time in prison and are able to even prepare for life after prison. Their 'business',  is conducted not via the banking system but strictly in cash. They are able to put money aside for when they are released into society if they desire. When they are released, they are not only allowed but are encouraged to pursue careers in white collar industries such as finance law and medicine. If they wish to resume their illegal activities and resume dealing drugs, there is nothing preventing them from doing so. For the released drug dealer, the opportunities are limitless if he is motivated.

The white collar felon faces a radically different set of circumstances when he is released however. Many white collar felons were unaware that they were violating the law and even if they were the odds are that most of their gains and their assets are easily traceable. In other words, they are usually not in a position to prepare for life after prison because, they usually are not even aware they will be going to prison. The next obstacle comes when he wants to go back to work. While he will have the same restrictions as any other felon, he faces additional restrictions as a white collar felon. For example, a doctor who is convicted on charges of insurance fraud is no longer permitted to practice medicine even though his crime had nothing to do with the practice of medicine. How is he supposed to sustain himself if he can't go back into the one industry he knows even if he is willing to not take insurance. A financial professional is effectively barred from the finance industry even if he wants to go into an area of finance that has nothing to do with the reason he went to prison if the first place. It is virtually impossible in most states for a for a former white collar felon to obtain any professional license. While a non white collar felon who wishes to find employment is one of those fields is viewed as reformed or rehabilitated, a white collar felon is viewed as someone who needs to be prevented from being in a position where he may commit a similar crime. In this backwards system, from the standpoint of starting over, it is sometimes better to have been convicted of a drug crime or even a violent crime than have been convicted of a white collar crime.

I write this not to vent, but to articulate another issue that faces white collar defendants. A white collar defendant will, when considering a plea, think that he serves his time and then it is over. Not so. He needs to be aware that agreeing to plead guilty to an offense is a life altering decision, one that will have a longer lasting impact than the time that he is incarcerated. Until there is real prison reform, the white collar felon will continue to be the one treated most unfairly by the criminal justice system. If the President truly wants to make America great again, he will certainly need to assistance and input of those white collar felons who have paid their debt to society.

Friday, March 10, 2017

KEEP YOUR EYES ON THE PRIZE

Talk to any current or former defendant and they will affirm that the pace at which the criminal justice system moves is completely different from what their impression were before he became embroiled in the system. Most people get their knowledge from TV programs, if which there are no shortage. Be it Law and Order, LA Law, The Practice or any of the other legal series that have been popular over the past 30 years or so, people have become conditioned to believe that the legal process moves at an efficient pace. Indeed, in the span of an hour and entire case is usually solved!

White collar defendants by in large come from the private sector. True, there are a fair amount from the public sector, but they are not the majority. Therefore, most defendants are used to working in an environment where efficiency is applauded. Suddenly being thrown in to the criminal justice system, which operates ate a radically different pace than what he is used to can be extremely frustrating for a defendant. True, defendants do have the right to a "speedy trial" but that is not an objective term by any stretch at all. Prosecutors need time to build their case and the statute of limitations will give them anywhere from 3-10 years to indict for white collar crimes. Just to give an example, from the time the investigation into me commenced until the time I ultimately indicted was over five years! I ultimately did plead guilty but had I con to trial, it could have easily dragged on another year or two.


The waiting game can often be as difficult or more difficult than the actual sentence. It also may actually be longer than the actual sentence. For someone who just wants to put everything behind him this is extremely frustrating. He wants to get on with his life and get out of this state of limbo. This is especially the case if he feels he is innocent but is suffering under a cloud of suspicion which is impacting his ability to find gainful employment and move on with his life. The cumulative effect of this frustration can potentially be a downward spiral where a defendant is left depressed and in a state of inertia where he cannot move forward. The prosecutors know this. They are well aware that for a defendant, stagnation is extremely difficult. Part of their strategy is that the longer a defendant waits, the more willing he will be to take a plea on their terms and not on his. Early on in the process every defendant is inclined to fight. Trial carries the risk of losing for a prosecutor. The longer a defendant has to wait, the more willing he will be inclined to avoid trial. At that point, they believe anyway, the defendant will negotiate on their terms on not on his own. Is this ethical? Well that depends on who is asked. Certainly, it is not illegal.

During these times it is important to focus on what a defendant's goal is. The goal, for any defendant, whether he is innocent or guilty is FREEDOM,  to be able to get out of the situation with as little suffering as possible; to be able to move on. That is the goal, plain and simple. During these times of frustration, rather than get angry at a system that he cannot control, he needs to look forward. There will be a time, be it in the coming months or years that this will be over. Yes, he may need to go to prison, to move that time closer but the time will come. There will be a life to lead when it is over and he will need to re-establish himself. He will once again be not only free from the custody of the custody but free of the mental baggage that he is carrying with him. He needs to focus on this at all times when he is not actively involved in his defense. Most critically, he needs to avoid the malaise that is the result from his own mental prison. He needs to start laying the groundwork now for when this is over. He needs to maintain healthy familial relationships so as to avoid being both physically and mentally absent from his spouse's and children's lives while he is not (yet) incarcerated. The worst thing that can happen is for him to serve 3 years in prison but have missed out on 6 years of family life. He needs to realize that for him to fully enjoy the benefits of freedom in the future, he needs to actually live his life in the present.

The criminal justice process is akin to a 162 game baseball season. You need to play well in April in order to better your chances of even making it to October. It is long, tituis, and often times boring but at some point it ends. However, the baseball player only looks forward to winning in October. The defendant looks forward to the rest of his life. Keep your eye on the prize Always.

Friday, March 3, 2017

No Good Deed Goes Unpunished

The social ramifications of becoming either formally or informally a white collar defendant can be wide ranging. Unlike violent offenders, white collar defendants will very often be members of various boards, donate heavily to charity, do volunteer work and even help their friends. They will very often, with good intentions only, bring on friends as business associates or as partners. They feature prominently in social circles and are often quite visible, especially when they are leaders of industry. Keeping in mind that white collar defendant often do not even realize they are ever doing anything that violates the law, their motives are almost always altruistic and come from a genuine desire to help others.

There is a story told of a wealthy man who served on the board of directors of a prominent organization. For many years his opinions were sought after and the board always heeded his advice. Whenever he spoke, other member were silent and listened attentively. Unfortunately, late in life, this individual made some bad investments and became destitute. While he remained on the board, his opinions were no longer solicited, his advice ignored and when he spoke no one bothered to pay attention. One day he got up an exclaimed "I may have lost my money, but I didn't lose my mind!" 

The same analogy can sadly be applied to white collar defendants. An individual may have given many hours of his time in serving on a non profit board. He may have given millions of dollars toward an organization. However, once he becomes a criminal defendant, those very individuals will abandon him and cast him aside. Suddenly, his opinions do not matter. The years of service that he will have given to that organization will be forgotten. Even worse, the organization, will often go to great lengths to disassociate itself from that individual, All the good that the individual has done will not only be forgotten but will be disavowed. He will have been better off, from a social standpoint never having given of his time at all. Whats worse, some will claim that he used his position of authority and his social status as a platform to deceive others and legitimize himself when nothing is further from the truth. They will say that the money he gave to charity was not done in the name of kindness but was done for the sole purpose of enhancing his stature. Of course, the organization is still all too happy to keep the money they have received over the many years!

The same can be applied for friends and even worse so for friends that a defendant went out of his way to help with no personal gain whatsoever. Before he became a defendant, he was in all likelihood successful in one or in many business ventures. As is normally the case, friends will want to do business with him so that they too can receive the benefits from the proverbial golden goose. They will beg to be in business with him so as to enrich themselves. In truth there is nothing at all wrong with this as everyone is entitled to do whatever they can to accumulate wealth and to provide for their families.

Sadly, when the tide turns these friends are nowhere to be found. When the investigation starts, these former partners and associates will miraculously develop amnesia or will concoct a fictional revisionist history where they were not in business with the defendant at all. They will minimize their role. Whats worse, they will tell others that not only were they not partners, but they were in-fact, victims of their friend's lies and deceptions. All of the kindness given to them will be forgotten in the selfish endeavor to extricate themselves from they view as a dangerous association. The years of friendship will be erased. Sometimes a husband who did not bother to tell his wife about his business association will, in attempt to lessen his sin of not including her in a major decision will simply blame the defendant. Often times, if there was an investment involved, a defendant will have allowed his friends to invest and not take the normal fees to which he is normally entitled. He does this out of kindness only. Unfortunately, in the name of greed, his friend will invest more than he can afford. If he loses the money, he now needs to explain this to his wife. He will simply deflect the blame from himself for his own irresponsible behaviors and turn on his friend.  Whats worse, these "friends" will turn on him and will even speak to federal agents and offer fabricated "alternative facts". An act of kindness toward a friends has been repaid by his becoming a weapon of the prosecution. Families that have developed long lasting friendship will be torn apart because of a lack of appreciation for an intended kindness.

The social stigma surrounding white collar defendants is often unjustified. People are quick to rush to judgment and to abandon associations. It is times like these when the a person's true character is revealed. A defendant should not delude himself into thinking that all of the good he has done over the years will garner the amount of support deserved. Nor will  all of the people he has helped stand by him. Yes, he will have friends who will stand by him but to believe that they all will or even that most will is wishful thinking especially when he was kind enough to bring people into business with him. Sadly, all too often, for white collar defendants, no good deed goes unpunished.

WHEN FRIENDS BECOME ENEMIES AND SECRETS ARE REVEALED

Getting implicated in a crime comes with many challenges. There are financial challenges, social challenges, and of course familial challen...