Innocent Until Proven Guilty or Guilty Until Proven Innocent

As Americans we are all taught that a fundamental tenant of our criminal justice system is that we are all innocent until proven guilty. Where exactly did this come from? When I told my children, the oldest of whom was 12 at the time, that I was going to be indicted they told me that I have nothing to worry about because I was innocent until proven guilty and that "they" would have to prove, at a trial what they claim I did wrong. Until the writing of this actual entry, I took for granted that this was written somewhere in the constitution. Keep in mind that I did not go to law school!

I was fascinated to find out that this is not a constitutional right. To be sure the Constitution does provide for the right to remain silent, the right to not incriminate oneself and the right to a trial by jury. From my small amount of research, I have been able to surmise that this is an ancient concept and that the Supreme  Court did rule in 1894 (Coffin Vs US). Without getting into the details of the case, as this is not a law blog, the decision states:

"The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law. … Concluding, then, that the presumption of innocence is evidence in favor of the accused, introduced by the law in his behalf, let us consider what is 'reasonable doubt.' It is, of necessity, the condition of mind produced by the proof resulting from the evidence in the cause. It is the result of the proof, not the proof itself, whereas the presumption of innocence is one of the instruments of proof, going to bring about the proof from which reasonable doubt arises; thus one is a cause, the other an effect. To say that the one is the equivalent of the other is therefore to say that legal evidence can be excluded from the jury, and that such exclusion may be cured by instructing them correctly in regard to the method by which they are required to reach their conclusion upon the proof actually before them; in other words, that the exclusion of an important element of proof can be justified by correctly instructing as to the proof admitted. The evolution of the principle of the presumption of innocence, and its resultant, the doctrine of reasonable doubt, make more apparent the correctness of these views, and indicate the necessity of enforcing the one in order that the other may continue to exist." -Wikipedia

This in theory, is supposed to protect a defendant. A prosecutor is supposed to have to "prove" you guilt. If a defendant is innocent, he should have nothing to fear! Truth be told my children's' questions were not wrong. If the system is so fair, and so just, then the truth should prevail. If a defendant is innocent, he should never even get to trial. And yet, as anyone who has been to prison will tell you "You can't fight the feds, when they want you, they got you". 

In my opinion, one of the major flaws of our criminal justice system lies in the jury system itself. Defense lawyers will tell you that this is an amazing benefit to a defendant, and I do not disagree. The issue with juries is two fold. Firstly, we, as Americans are conditioned to trust the authorities. We are trained that the government is here to protect us. Sure, we have the right to challenge injustices, but we are taught to believe that the government is right, that the government is, at the end of the day good; and compared to many other countries it most certainly is. Even challenges to the government are generally limited to local issues and government employees such as police officers and local politicians. Prosecutors and the DOJ seem to be be surrounded by an aura of infallibility who are here to protect us and can do no wrong. Therefore, to a juror, when in doubt, in condition trust the prosecutor. And they know it. The problem is that prosecutors are sometimes wrong. 

The second inherent problem of our jury system reminds of an old axiom that states "Would you want a jury deciding you fate when they were not smart enough to get out of jury duty?" I am sure that there are some jurors who feel they are serving their "civic duty" but sadly, for most jurors this is not the case. Unfortunately, in white collar cases, this can create an extreme bias against defendants. White collar cases are extremely complex. The laws themselves are complex and are all open to interpretation. Often times, the lawyers themselves have to educate themselves on these laws and the interpretations for weeks or months before trial. Add to that, the world of finance is extremely complex. How is a jury, made up of individuals most likely not from the financial industry able to understand the alleged crime and interpretations of complex laws much less be able to decide innocence or guilt! Defense lawyers and prosecutors will spend months or even years trying to understand the complexities of these laws and yet we expect a jury of laymen to be able to learn these laws, understand these laws, and be able to judge a defendant all during the course of a 2 week trial. How is a juror who may not have a brokerage account, who has never even traded a share of stock be able to judge a defendant accused of insider trading! How is a juror who is not employed in a field remotely connected to the financial industry able to decide what is considered wire fraud. How is someone who has never even billed an insurance company  able to determine what constitutes insurance fraud or medicare fraud. I have been in the finance industry for 17 years and would not feel comfortable as a juror in such a case. (Luckily as a convicted felon, this will never be a problem). To illustrate this point, I know of someone who went to trial for mortgage fraud and during the deliberations, the jury sent out a question asking for the definition of a mortgage! And this was the jury tasked with coming up with a verdict that would alter his life.

The sad reality is that once a juror is not able to truly understand the nature of the laws and the crimes at the center of a white collar criminal trial he will fall back on his inborn trust of the prosecutors. Prosecutors, in my opinion know this as well. Yes, it would make more sense to have industry insiders fill the role of jurors; people who actually understand the laws, charges and can make an informed decision as to the level of innocence or guilt. It would probably make sense to have Wall Street veterans serve on the jury for an insider trading case. Unfortunately, it is virtually impossible to arrange for that type of a jury. Defense attorneys are then faced with the impossible task of trying to simplify extremely complex issues, a nearly impossible task. Is it any wonder that so many of these verdicts when compared to non white collar convictions are appealed? Of course, unless your judge allows you to stay out of prison pending appeal, you may end up spending more time in prison waiting for the results on your appeal than you would have had you taken a plea deal. Is it worth it?

It is wishful thinking to think a white collar defendant, can get a truly fair trial. The mechanism simply doesn't exist and I highly doubt that when the framers of guaranteed us the right of trial by jury that they were envisioning white collar crimes. A defendant faced on white collar charges needs to keep this in mind when deciding how to proceed with his case. He may have to face the reality that he is in-fact, guilty until proven innocent.

NOTE: I am not a lawyer and none of this should be construed as legal advice. All legal questions should be addressed with your lawyer. These are merely my opinions based on my experiences.

How To Lessen Time Spent In Prison - Residential Drug Abuse Program (RDAP). If You Ever Will Consider A Plea, Read This First!

One of the most important questions a defendant who is contemplating a plea must ask is "How much time am I willing to spend in prison?" For some people the answer is five years, for some it's 10 years, for some it is one year and for some it is no time at all. Like most defendants who viewed himself as innocent, my initial position was "not five years, not five months, not five minutes!". However, as time goes by and the realities of the risks associated with a trial become a reality, positions change. This is where the real challenge comes in. The goal is to figure out what the maximum sentence a defendant will allow himself to get in order to reach his maximum tolerance of time inside the prison gates.

Let me just make one point right before I start. Unlike the state prison systems, there is no concept of parole in the federal system Parole is the method by which inmates of State prisons are let out early if they have been "rehabilitated". Unfortunately, parole in the federal system was eliminated in 1987.

The first item that gets taken into account the the amount of "good time" associated with a sentence. There is supposed to be a good time credit of 54 days per year that kick in at a year and a day. In reality, because of some complicated math used by the Bureau of Prisons, this actually comes out to 47 days or so. Another quirk in the system is that since good time is only given for sentences of over one year, someone sentenced to one year will not get any good time credit. However, a sentence of a year and a day, will get the good time credit. What is even more insane is that because someone with a shorter sentence most likely will not need any time in a halfway house, it is quite common for someone with an 18 month sentence to spend less time in the actual prison than someone who has only 11 months. The reason is simple. If someone has 18 months, he will get say 70 days or 2 months and 10 days off his sentence. this reduces it to 15 months and 20 days. From there, he will get 1.8 months off home confinement as home confinement is usually 10% of a sentence. This will reduce his time inside to prison itself to about 13 months. From there he could very well get additional time in a halfway house. If he gets only 2 months of halfway house time, he will spend the same 11 months in the actual prison. I will go more into the halfway house in a later blog.

The next and most popular way to get time off a sentence is by completing the Residential Drug Abuse Program (RDAP). Unfortunately, it is also the most complicated and will make a prison sentence a little more restrictive. RDAP is a 500 hour course that takes about nine and a half months to complete. It is a voluntary program designed to tackle substance abuse issues. Those inmates in the program live in a separate dorm and have class every day. After being released from the prison, the inmate must go through four months of TDAP which is designed to make sure the inmate does not fall back on his addiction. It also basically guarantees at least four months of halfway house time followed by home confinement.  In return for going through this process, up to a year will be taken off a sentence. The Good Time Credit, oddly enough, is still based on the sentence before the reduction. The theory, I assume is that if the inmate does not attend TDAP, his year off will be revoked and he will then have to go back to prison.

As I mentioned, the rules of RDAP are relatively complex. One very important rule is that a candidate for RDAP must exhibit patterns of abuse during the year prior to indictment. If you conquered drug addiction five years ago, you are not eligible.What is even more interesting is that if you became an addict post indictment as a result of the stress associated with your case, you a similarly not eligible, I cannot stress this point enough: IF YOU THINK YOU ARE GOING TO BE INDICTED, YOU ARE TO CONSIDER YOURSELF AN ADDICT! It does not matter if you are an alcoholic or are addicted to any sort of drug or pills. From here on out you are an addict. To be sure, I am not advising dishonest; quite the contrary, I am advising you to be honest with yourself and face your addiction. When you get arrested or you surrender, before your bond hearing, you will be interviewed by an officer of the court. He or she will ask you if you are dependent on drugs or alcohol. Yes, you are.

So how does the time off work. Like everything else in the BOP, this is not simple. A sentence can be reduced by up to a year. However, a certain minimum sentence needs to be given to get a year off. As of now, in order to get a year off, a defendant must receive a sentence of 37 month or more. In order to get up to nine months, the sentence must be at least 31 months. From 30 months on down a sentence can be reduce by a maximum of six months. Now this is where it gets complicated, because once again, we have a situation where a higher sentence can result in less time in prison. Lets take two individuals; one has a 30 month sentence and one has a 37 month sentence. For the purpose of this example I am going to assume they both are admitted to RDAP before they get to prison and start the day they get there.

The individual with the 30 month sentence will get good time credit of around 117 days or around 4 months. He will then get an additional 6 months off for the RDAP credit. From there he should get at least 4 months of halfway house time to complete TDAP. And from there he will get 3 months of home confinement. The total time off therefore is 17 months out of his 30 month sentence, which means he should serve a maximum of 13 months in the actual prison.

The individual with 37 months will receive 145 days off for good time or around 5 months. He will then get a full 12 months off for RDAP. He will likely get 3.7 months of home confinement and should get at least four months in the actual halfway house. His total time off is therefore 24.7 months resulting in actual time served of 12.3 months, slightly less than the inmate who received a 30 month sentence. If we are to apply the calculations to a 60 month sentence, it should come out as follows. 60 months is actually about 51 months after the Good Time Credit. From there, RDAP will reduce the sentence to 39 months as 12 months will be deducted. Since the sentence was originally 60 months, he would be eligible for up to 6 months of home confinement, taking him down to 33 months. From there if he can manage 5 months of halfway house time, he will be at 28 months. Essentially, a five year sentence can amount to a total of less than half of that in the actual prison.

Going back to the defendant deciding how much time he can tolerate in prison, he just needs to use these calculation. If he is willing to spend up to a year in prison to avoid a trial, he should be able to accomplish this with a sentence of between 30 and 37 month. I personally know people who have spent less than a year in prison with sentences in this range. For a defendant this tool is critical. Viewing this from the standpoint of a prosecutor, it is very easy to understand how from a public relations standpoint a sentence of 37 makes for a much better headline than 11 month does.

The final two issues are relatively minor but need to be considered when contemplating the length of time that one is willing to serve. The first of these two is the issue that RDAP is not given in every prison and certainly not in all of the camps. There are only 90 RDAP programs at 77 different locations. Of those 90 around only 20 are at prison camps. There are only 2 Spanish RDAP programs and only 10 for women. The list can be found at https://www.bop.gov/inmates/custody_and_care/docs/RDAP_locations.pdf
When contemplating a plea and putting RDAP into calculations, it is important to consider that it may be necessary to be incarcerated at a facility that is not close to home, making it more difficult for friends and family to visit. This is especially important considering there is not a single RDAP program in a camp in the New York and New Jersey area. On the other hand, the Miami camp where I spent my time, does have RDAP and plenty of people are more than willing to forego the benefits of serving time near home in exchange for reduced time  and a favorable climate. Since most people are designated to serve near their homes, it is all the more important to establish an addiction early on in the process if the closest facility does not have an RDAP program.

The next issue involves a little bit of planning. Considering that RDAP lasts 9 months and there are only 3 classes going at the right time it is critical to try to arrange a surrender near the start of a class especially when dealing with a sentence of 37 months or less. The reasoning is simple. It is possible to get total halfway house time, inclusive of home confinement of 9 months. After the RDAP reduction, the total sentence before halfway house time is 20 months after deducting good time of 5 months and RDAP reduction of 12 months. If someone is able to start RDAP the day he gets it or even withing a month of surrendering, he can essentially complete RDAP and then be released to the halfway house almost immediately after if he gets 9-10 months total halfway house and home confinement. If, on the other hand, he surrenders in right after a class has begun, he can potentially sit around for 3-5 months waiting for RDAP to start. In that scenario, this same 37 month sentence will go from 10 months to 15 months. Timing is critical when trying to maximize the RDAP benefit.

Plea deals are complicated and unfortunately there are competing interests at play; none of which really involve applying the "appropriate" punishment. Clearly, the prosecutor, is looking for the best headline, especially if the case is relatively high profile. The defendant, and his lawyer, wants to get the best possible deal so as to avoid a trial. During these times it almost a team effort between defense lawyers and prosecutors to come up with that magic number that satisfies everybody's interests. Once the sentence is handed down, the prosecutors really do not care how much time is actually served. They got their headline, and the defendant hopefully, managed to stay at or below his level of tolerance. Next time you hear that someone was sentenced to five years, done be surprised if you see him walking around in less than half that!

Oh No! My Friend Is In Trouble!

Last week, I wrote about how one should handle the exposure he gets embroiled in a criminal probe. This week I will focus on how you should act if you know someone who has been indicted or has been publicly linked to an investigation.

So it seems one of your friends has gotten into a little bit of trouble. You want to be there for him, but you do not know what to say. You do not want to ask too many questions, but you want to show you are concerned. What do you do?

First, I am going to focus on what NOT to say because it is usually better to say nothing than say something that is completely inappropriate. You would be surprised at the dumb things people have said to me over the years. I am sure they meant well and just did not know better. Just as there is a way to speak to someone who is in mourning or one who is ill, there is a way to speak to someone who has recently become part of the the criminal justice system.

The first thing you should never say is "Wow, I don't know how you are handling it, it really is amazing, I could never handle it like you are." You probably think that you are paying your friend a compliment and telling him how much you admire his resilience. Your intent is probably sincere. However, what you are really saying is "Your life sucks buddy, I could never handle such a thing. It really is terrible, and I am glad it isn't me." Think about it, your friend probably struggling with the stress every day and is trying to manage a very complex situation and here you come and tell him that his situation is terrible. How do you think he is going to feel after you say that? Would you walk up to a cancer patient and say, "If I had your cancer, I wouldn't be able to handle it, Cancer is terrible, I am glad you have it and not me". I do not mean to minimize cancer; quite the contrary, you cannot put a price on health. I am just making the comparison to illustrate that just as there are certain things you do not say to a friend who is ill, you should similarly not say those same types of things to your friend who is dealing with this type of situation. This is his cancer. He does not need you reminding him of how bad it is.

The next thing you should never say is "I feel so bad for you". Just like the above situation, your friend does not need to be reminded of his predicament. He does not want your pity. Does he want your support? Yes. Does he want your pity? Absolutely not! Empathy is an admirable trait. I am sure you mean to be supportive making someone feel like a sad homeless puppy is not the way to do it.

The next thing you definitely should not say is "We were all talking, and we really would like you to know that we feel bad that you have to go through this. So basically, what you just told your friend is that he has become a topic for gossip. You are telling him that at some event, that mind you he was not invited to, you all decided to discuss his situation and by the way, thank you for pointing out how dire it is that he needs your sympathy. Again, this is something that on the surface seems like a caring comment but from receiving end, it is really doing more harm than good.

NEVER EVER say, things like "So is it true?" or "It's too bad you got caught." or "I am sure you didn't mean do commit a crime but then you got to the point where there was not turning back." or "hopefully you hid the money". It seems obvious, but you would be surprised at how many times I have heard these very comments or comments similar to these. Your friend may very well believe that he is innocent and the last thing he wants is his friend assuming he is guilty. Of course, if he is guilty and did not make financial preparations, you are not exactly helping by pointing out that he is going to be having serious financial troubles on top of his legal issues. And if he did hide the money, do you think he is telling you?

Some people ask questions that focus on bad outcomes. The will ask things like "Do you think you wife is going to leave you?" or "How will your kids handle it when you go away?" Clearly questions like these are not helpful. Sure, internally your friend is dealing with some if these issues, but he does not need you reminding him that in addition to his freedom being in jeopardy, his family may come apart as well. Unless he brings these concerns up to you, Lastly, never say "Don't worry, everything is going to be fine", You do not know that everything will be fine so don't make predictions that you do not know will come true.

Often times, friends feel the need to give advice-whether asked for or not! Aside from the arrogance involved in giving unsolicited advice, it usually proves to be completely useless and flat out wrong. This can apply more often to clergy members, but it applies to friends as well. Telling someone that you think it is a good idea that he moves to another neighborhood is an example of something that should never be said. What you are telling him is that his reputation is so destroyed where he is that he should just leave town. Also, as I mentioned last week, the most important thing for you friend is to keep things as normal as possible so that he gives off an aura of confidence. Leaving town hardly makes someone look innocent.

Now that I have mentioned what not to say, the question is what you should say. The first thing you need to figure out is how good of a friend you are. Friendships are complicated under the most optimal of circumstances. Even then friends do not always view their friendship in the same light. Just because you think the two of you are good friends does not mean you friend feels the same way. Do not try to fill the role of a close friend when in reality you are nothing of the sort. The last thing anyone wants is someone who he doesn't feel so close to acting as though you are.

Once you figure out what kind of friend you are, the question is what to say. As a general rule is that it pays to offering words of encouragement. Sometimes simply saying, that if they need anything or someone to talk to that they can call you that is enough. Saying something to the effect of "I am sure you have a lot on your mind and if you want to talk about it, I am here" will let him know that you sympathize with the situation but it doesn't convey the same level of pity and graveness as pointing out how dire a situation may seem to be. It is OK to say things like, no matter what I am there for you". Simply pretending that things are normal is sometimes support enough. Believe me, your friend who is in trouble knows you know about it. When he is ready, he will talk to you. Sometimes the best support you can give is by simply asking how he is doing and then keep the relationship going as though everything is normal.

As far as giving advice goes it pays to err on the side of humility. In other words, do not give advice unless your opinion is asked. If you do not know enough to give advice, then say that you really can’t give advice because you do not know enough. If your friend is accused of insider trading and you work in a completely different industry there really is not for all practical purposes what advice you can give him from an industry knowledge perspective. Unless you have gone through a similar experience, there is no way you can possibly know what he is going through so do not pretend to.

Someone going through the grueling process that is the criminal justice system, no matter how big or small the case is undergoing an enormous amount of stress. In many ways he feels as though he is fighting for his life. He is spending lots of time dealing with his lawyers and thinking about how this will play out. Friends want to be supportive, but sometimes less is more.

Handling Your New Found Fame

When I was doing my time, someone commented to me that the only people worth knowing inside a camp are those that show up on the first page of Google. Unfortunately, what can give you "prominence" inside can have the opposite affect when the news hits.

Most targets of federal investigations will find that the press will decide to become judge, jury and executioner before any actual indictment has been filed. Individuals, who either lived a life of relative obscurity or who were only known only to industry insiders may suddenly be vaulted into unwanted fame. You do not have to go any further than the last month to find individuals who are suddenly famous. Even someone as notorious as Bernie Madoff was only known to industry insiders until 2008, at which point he became a household name. Just think about Bernie Ebbers, Jeff Skilling, Ken Lay and Dennis Kozlowski. To be sure, these were well known individuals in the corporate world but virtually unknown outside of corporate America. On a smaller scale, this will happen to almost anyone who is involved in a high-profile case or even in a not so high-profile case. Your name will. in all likelihood, be in the local newspaper and quite possibly in a national publication. Your neighbors will know you got indicted. The challenge is how will you deal with your new-found fame.

As one whose named appeared early on, I dealt with many of these challenges. The first piece of advice I will give you is use your lawyers. There will be an urge to "set the record straight", to try and let the reporters know that they have it wrong. You are going to want to plead your case so that the news source writes a favorable article. Big mistake. Exonerating you does not sell newspapers. At the very least, they will twist your words and use the lines that serves their purpose and at worst, you will say something that the prosecutor will be able to use against you at a later date. My advice is if you do pick up the phone so simply hang up or say no comment. Any half decent reporter will be able to find out who your lawyer is, or you can simply instruct the reporter to contact your attorney. If you do not have an attorney yet, then simply hang up or say no comment. No good can come from speaking to the press. As noble and innocent as your intentions may be, your words will likely be misconstrued and twisted to shed you in the most unfavorable light.

Once your name is in the press, you have to figure out how to deal with it. Some people decide that the best approach is to simply become a hermit. This is a bad idea. The best way to try to show people that you are innocent is to go about your life as normally as possible. Hold your head high. How you project yourself will influence how others see you. If you disappear from public eye, you will simply look guilty to those around you. If you go out to eat regularly, continue to do so. If anything, increase the amount of time that you are in the public eye so that you exude an air of confidence. Aside from the impression left on others, barricading yourself at home will cause you to feel depressed, impairing your ability to focus. If you are about to embark on a lengthy legal battle you are going to have to focus and think clearly.

Do not be surprised if there is some social backlash from your newly found fame. You will find out who your real friends are. Your real friends will stand by you no matter what is printed in the daily paper. Anyone who decides to shun you because of what they read in the paper was never really your friend; they just pretended to be because you had something to offer them. The one positive of negative press coverage is that you can find out who your real friends are. At the same time your friends may ask you about your case. You need to handle this delicately for a few reasons. Firstly, your friends may tell others what you say and that may not be conveyed accurately in spite of the fact that it will be attributed to you. Furthermore, anything you tell a friend is not protected by any legal mechanism and if this friend ceases to be one then there is nothing preventing him from reporting what you said to the prosecutors. Often times cases do not hinge on facts; they hinge on interpretations of law. Just because you don't think what you did broke the law doesn't mean the prosecutor will see it the same way. A good friend will respect your reluctance to speak about the controversy surrounding you.

As far as your professional life is concerned, things may not be so simple. Many clients and business associates will cease to be associated with you because of your new-found fame. You have to appreciate their predicament of course. Some of your best friends may be there for you socially but may need to dissociate themselves from you professionally, do not take this personally. When you are faced with it, you may simply ask if there is anything you can do to allay their concerns and then be gracious. If you are not guilty of any crime they will come back and if you have to go away for a bit then they would have had to stop doing business with you anyway, Is it fair? No. It is important to understand the perspective of your business associate. The last thing anyone wants is to needlessly get embroiled in a legal battle,

How you handle the press will affect your family as well. Depending on their ages, they may see the stories online or in the paper. The best approach is to firstly, tell your kids that just because something is written online or the newspaper does not mean it is true. At the same time, you you handle yourself will affect how your family handles themselves. If you exude confidence, they will gain strength from your resilience.  If you get depressed, so will they. Always remember that you have a responsibility to make sure that your family does not needlessly suffer.

Sometimes the best approach is to simply not read the paper or any articles on your case. This is really hard but is likely the healthiest approach. The less you focus on the news, the more mentally healthy you will be. If you are constantly checking Google to find out the latest articles written about you, you will end up driving yourself, and everyone around you, completely crazy. Yes, it is important to know what is going on in your case but unfortunately, most articles these days are simply rumor and innuendo. Believe me, the amount of time you spend reading about yourself online will in no way affect the outcome of your case.

If I may offer a word of comfort, unless you are a truly notorious personality, this will be relatively short lived. Thankfully, the news changes daily and there is always a new, better story. You really are not that important in the overall scheme of things and pretty soon, most of the stories about you will not even be newsworthy enough to print. People also have short memories. Eventually, when this is all over, people will actually have to google you to found out who you are.

*As always, this blog is not meant to dispense legal advice. Any legal questions should be directed toy your attorney.

To Plea or Not To Plea? (Part 2)

This week, I am going to deal with costs, lawyers and odds.

There is no easy way to put this: fighting an indictment, whether you are innocent or guilty will cost you money. Unless you decide to go with a public defender, this means you will likely be spending money, and a lot of it, on a lawyer. Some lawyers charge by the hour and some charge a flat fee. It is important to note that whether your lawyer charges by the hour or charges a flat fee, the cost of actually going to trial will always be more than the cost of taking a plea. Preparing for trial is extremely intensive. Aside for setting aside the time needed for a trial which can range from days to months, your lawyer will need to prepare for trial. This will include interviewing witnesses, going through documents preparing you to testify, and preparing all sorts of pretrial motions. This is before outside vendors such as jury consultants are called in. This all translates into a lot of work which means a lot of billable time. Even an average lawyer is going to cost at least $300 an hour (some have hourly rates approaching $1000). Most white-collar cases are not simple. A two-week trial can easily take 60 hours. That is the inexpensive part. The preparation for a trial can easily exceeds 1000 hours. In other words, it is not only possible but probably that even a second-tier lawyer will cost well over $300,000. This is aside from any legal bills you may have accrued prior to deciding to go to trial.

For some defendants, this is enough of a reason to take a plea. The calculation is simple. A defense will cost $300,000. If that defendant stands to lose $100,000 per year by being incarcerated, he would be willing to take a plea that sends him to prison for under three years. Simply put, by going to prison for say two years, he will lose $200,000. By deciding to go to trial, the cost will be $300,000 even if he wins. So, the defendant may decide to take a plea purely because he will be saving $100,000 by not having to pay to go to trial. Of course, if he loses at trial, then he will lose many more years of income in addition to the money spent on lawyers. Finally, another consideration for most people is simply being able to pay for a lawyer. Often times, because most white collar indictments focus on financial enrichments by a defendant, a lawyer will not be willing to take money from you and will ask you to have someone else pay for you or for you to demonstrate that in no way was this money obtained in a way that could expose them to a claw back by either the government or by a bankruptcy trustee. Other times, you may not have the funds required but most lawyers who charge hourly will work with you provided they have a sufficient retainer.

The point is, right or wrong, for most defendants, the cost of going to trial will heavily influence their decision to take a plea; guilt or innocence notwithstanding. Defendants do not get reimbursed by the government if found not guilty so even in victory, a defendant may suffer financially. It is always important to consider that the prosecution has unlimited resources; you, in all likelihood do not. The prosecutors get paid a salary by the government, you need to pay yours and the longer it drags on the more it will cost you. If the prosecutor wants to, they can drag a case on for as long as they wish. If they lose, they go home to their families; if you lose, you do not go back to yours and you are out the money. Unfortunately, cost has to be a factor; it shouldn't be, but it is.

Closely related to the issue of cost is the issue of choosing a lawyer. This is probably the single most important decision that you will make, it is important to interview at least two lawyers before choosing which to retain. It is preferable to get input from either clergy, former defendants, or consultants in helping you decide on which lawyer to retain. It is important to note what a lawyer will and will not do. A lawyer will not tell you if you are going to be indicted; he just doesn't know. A good lawyer will never tell you that you will definitely win a trial. Your lawyer is not your therapist (and you do not want him to be if you need to pay him hourly). Your lawyer will lay out what he thinks is the prosecution's case against you and he will develop defenses. He will meet with the prosecutors on your behalf. He is your mouthpiece. He is your legal counsel. Again, if you do feel the need to talk to someone consider clergy, a therapist or again, a consultant such as myself. The most important factor and that you are comfortable with and trust your lawyer. The same is true with anyone with whom you decide to bring into the process.

Just as in the case of any industry, the cost of a lawyer can vary. The price can range from nothing for a public defender to in the millions for shall we say is the Rolls Royce of lawyers. One mistake that many defendants make is that they do not know which kind of lawyer they need. Sometimes a defendant will panic and hire the most famous and expensive lawyer when, in reality, he would be just as well served with a less expensive lawyer. Sometimes a customer will buy a Cadillac when any old Chevrolet will do. To be clear, there is not necessarily a correlation between the cost of a lawyer and the quality or suitability of the representation. Clearly if you are a high-profile defendant, are set on going to trial should it come to that, and have unlimited resources, then yes there is a good reason to take the top attorney. One positive in choosing from the top attorneys is that they do not take many cases per year. A top lawyer will usually turn down other cases once he takes yours. However, as discussed, most cases do not go to trial. Often times prosecutors will cut the same deal whether you have the most expensive lawyer or a second or third tier lawyer. In many cases, the defendants who spent over a million on legal representation got the same plea offer as the one who spent only thousands or even if represented by a public defender. Speaking of public defenders, it should be noted, that at least on the federal level there are some very good ones. Often times these are ivy league graduates who are trying to get court room experience, and this is the only way to do so. The downside is that they often have huge caseloads.

The real question is how do you know which to choose. When crisis hits, the knee jerk reaction is to choose the best attorney that money can buy. It is important to take a step back at that point and analyze you plans. It is worthwhile to hire someone who has gone through this who can help you choose. If you are willing to concede to a plea early on or if you are not in such a complex situation, hundreds of thousands of dollars can be saved by choosing a less expensive lawyer who may be ideally suited to provide you with representation.

Lastly, I am going to address what I like to call the actuary method. It quite simply focuses on probability. As we all know, if you entire a contest with a 10% probability of winning $1 million, then you should be willing to sell that entry for 10% of the potential jackpot of $100,000. You would certainly sell it for half a million dollars unless you were certain that you were going win the full million. The same logic can be applied to the legal process.

Contrary to what we see on TV, there is no experienced lawyer with a winning record against the government. Any lawyer that tells you he has a winning case against the government has probably not tried many cases. But let’s assume for the sake of argument that you have a lawyer who wins 30 per cent of his jury cases against the government. If you are facing 20 years then, using the logic with the jackpot, be willing to accept a sentence of six years or less, all things being equal since 30% of 20 is six. By the same token, if you are facing 20 years and you are being offered a plea that can have you out in under two years, you would need to hire a lawyer with a better than 90% chance of beating the prosecution at trial. Most defendants do use this method in some way or another. When some takes a deal because "if I lost, I was going to go away for 20 years" he has decided that based on the rules of probability that he is going to take a plea. The problem with this method is that by using this metric, no one would ever go to trial. Indeed, we do find that most people who do go to trial were not offered deals that were compelling enough based on this metric. But then again, keep in mind that 98% of all cases are pled out.

I think I have hit the major points to consider when considering taking a plea or go to trial. Taking a plea means you are admitting to a crime. This is a life altering decision, make no mistake about it. It often requires you to swallow your pride and admit to things that you do not necessarily believe you did. Your life is changed in many ways forever once you make the decision to plead guilty, However, once it is over, you will recover you will rebuild. It is always important not to lose site of the big picture and to never lose site of the forest for the trees.

To Plea Or Not To Plea? That Is The Question (Part 1)

I touched on this point a bit last week, it is worth expounding on it as almost every defendant, whether innocent, guilty, or somewhere in between, will be faced with the decision of whether to take a plea or defend himself at trial. Let me clear, there is no uniform, right answer and every situation is different. One thing that is clear however is that in deciding to take a plea, issues relating to guilt or innocence are largely irrelevant. You will have to take responsibility.  A defendant who pleads guilty will have to tell the judge that he understands the charges that he is pleading to and will have to affirm that he understands the statutory maximum to which the judge can sentence him. If the judge does not believe that a defendant believes himself to be guilty, there is a chance he will reject the plea.

To review, there are two separate factors at play when it comes to sentencing; the maximum per count and the sentencing guidelines. For example, a count may carry a maximum prison term of five years, but the sentencing guideline range can, and often will come in below that. The judge, as he himself will tell you, is not bound by these guidelines; the judge can and often has gone above the guidelines.

The judge will tell you at the change of plea to guilty that he has that right and that guidelines are merely "advisory".

But before we get ahead of ourselves, I think it is important to go over some of the considerations that one must consider. Today I will focus on two of these factors.

The most obvious consideration is really one that only the defendant can answer. Did you do it? Are you guilty and do you believe they have the evidence against you? Do you believe that because of this you will definitely lose at trial? Essentially, they got you and you do not have a leg to stand on. In this case all you have to do is look at the downside. All you have to look at is what will you get when you are convicted and get you do materially better by taking a plea. If the plea is not worse than what you will face when you lose then you might as well roll the dice and go to trial. If it is much better, then yes, take the deal.

Outside of that situation the primary factor that any defendant must consider is his family. Most white-collar defendants have families. This is a good thing. A strong support system is important when going through this process as well as when you are released, should you go to prison. At the same time, it is important to realize that while going through a trial will be grueling for you, it will be complete torture for your family. They will have to sit there in court and listen to the prosecution throw everything they can against you. You have to ascertain if you want to put your family through the horrific experience that is a criminal trial. This can go on for weeks. For some defendants this is reason enough to not go to trial. Remember, that if you decide to go to trial you better have the full support of your spouse if you have one. It is important for the jury to see that you have familial support and it does not take a genius to tell you what a jury thinks of a defendant who does not have familial support during a trial.

There is another reason to realize that family has to be involved. If you go to prison, it is not only you who are going to prison. Your family is going as well. Aside from the fact that their lives will be disrupted by your absence, they will be visiting you in prison as well. Should you decide to go to trial, make sure your spouse supports you unconditionally in this decision. I have met may inmates who, against their spouse's wishes decided to go to trial and lost. Do you think a spouse, who advises you to take a plea which would have you out of prison in a fraction of what you get when you lose will be there waiting when you get out? You cannot blame your spouse. By completely disregarding your partner's wishes you acted selfishly. You left your spouse to care for your children for say 10 years when it could have been two. If your spouse does support your decision to go to trial, then he or she must be prepared for what happens if you lose.

Another issue with regards to your family involves children. If you are a responsible parent, you know that there is nothing more important than being with your children and caring for them. You want to be there at every event, be there for the milestones and watch them turn into responsible adults. Any time you miss with them is time you will never get back. At the same time, we want our children to look up to us. We want them to learn from us. We want our children to not be embarrassed by us. We do not want our children to have to come to prison to see us; we want to see them every day. As a defendant, you will wonder how your guilty plea will affect the way you are viewed by your children. You may ask yourself if it is better that you maintain your innocence even if you lose at trial rather than admit to a crime that you may or may not have committed. At the same time, you must consider the risks. As I mentioned last week, an indictment with the potential to call for a 20-year sentence per count should you lose can magically become a plea deal with a five-year maximum. This 60-month sentence can easily become 13 months of actual prison with a cooperation reduction. Are you comfortable taking the risk of missing your children’s' entire childhoods when you can only miss a small part of it? Even if you are, in-fact comfortable with that risk, is it fair to your children to take that risk? As hard as it would be for you to miss out on their childhoods, it is infinitely harder for them to grow up without a parent. As with your spouse, your children's' needs need to be as well. The reality is that children are resilient and when laid out for them they will not think any less of you for taking a plea. But what will they think of you if you decide to embark on a risky trial depriving them of a much-needed parent at home?

As I mentioned there is usually no right answer. But these are perhaps the two most important issues to consider. When you choose to have a family, that comes with responsibilities to be there for that family. A defendant is in an unenviable situation because there are now other people who will be affected by his decision Sometimes guilt and innocence are just irrelevant.

Next week costs, lawyers, and odds.

Does Prison Serve a Purpose and for Whom?

It's no secret and there is no reason to hide it. I was just released from federal prison. I served 11 months incarcerated on what was originally a 30-month sentence. For me, the actual part of serving my sentence proved, from my perspective to be the easiest part of my ordeal. From the time that the investigation into me commenced until the time I was sentenced, 6 years passed. In so many ways those years were harder, they were more of a punishment for me than the actual time served. My goal here is to share the knowledge that opinions that I have come up with over that time and lay them out here.

Which brings me to the purpose of my first blog. What is the purpose of prison? There are four purposes to incarceration:

1, Retribution-basically punishing someone for what he did wrong

2. Incapacitation-Keeping the offender away from society to protect society from him

3. Deterrence-If someone knows they will go to prison, then he is less likely to commit a crime

4. Rehabilitation-To change the behavior of the offender.

In general, there are two types of criminals; violent and nonviolent. Violent crimes consist of armed robbery, murder, etc. Nonviolent crimes consist of the white-collar variety such as financial crimes and insurance fraud and nonviolent drug offenders. In analyzing the purpose of incarceration, it is quite simple to understand why a violent criminal need to be incarcerated. He needs to be punished and society needs to be protected from him. Whether prison is a deterrent for a violent criminal is hard to tell and if he gets a very long sentence then rehabilitation does not come into play at all.

White collar guys generally do not fit this profile. Unless their crime is so very egregious, they usually end up in a prison camp. According to the US sentencing commission, the average sentence imposed for fraud cases was 27 months, yet it is the third largest portion of federal criminal convictions; only drugs and immigration cases were higher. Keep in mind most murder cases are dealt with on the state level.  Society does not need to be protected from them as any information about them is readily available. There also is very little rehabilitation needed or even offered to a typical white collar convince. Keep in mind, most of these individuals have been convinced of some sort of bank fraud, securities fraud or insurance fraud. As far as acting as a deterrent I would argue the following. Many white-collar convicts that I have met either made a clear calculation prior to committing their crime. They knew what they were doing was wrong. They knew they could go to prison. They decided to risk it anyway. The remainder of the white-collar convicts either did not know what they were doing was illegal, went to trial because they thought they were innocent and lost, or simply took a plea because the prospect of going to trial was either too much of a gamble, too expensive, or both.

Of all white-collar indictments around 98% of them plead out. Allow that to digest for a moment. The government only must go to trial on 2% of all white-collar cases. Does any think that the government gets it right 98% of the time? Let's not forget, that is excluding their wins at trial. Do 98% of defendants believe that the government's case is so persuasive that they just decide to admit what they did wrong? Only 2% of defendants believe that they are innocent? The reality is that going to trial is just too risky. The sentencing guidelines are a function of the charges brought against a defendant. Counts have a point scale and there are factors that can increase the total number of points that go into a sentencing guideline. If you plead guilty, then you get a reduction of points for: acceptance of responsibility". In reality, what happens is that if you go to trial then the charges are trumped up that even if you lose you are likely going to get quite a lengthy prison term unless you are lucky enough to get a judge that decides to have mercy on you and dole out a sentence below the guidelines. If you take a plea, the prosecutor will likely have you plead to a count that has a lower maximum sentence. As an example, a prosecutor can choose to indict a defendant on wire fraud which is basically a catch-all for almost any financial crime where someone uses the banking system based on false information that you gave him. The maximum penalty is 20 years in prison if you are convicted. That is 20 years per count. So, if you are indicted on 5 counts of wire fraud you can, in theory be risking up to 20 years in prison if convicted. Furthermore, since you will be getting a sentence of over 10 years, you are disqualified from going to a camp. You will be going to real prison.  The sentencing guidelines may come out lower, but the judge has the authority to sentence you to the maximum allowed per count. However, if you agree to a plea deal, the prosecutor may decide to "allow" you to plead to one count "conspiracy to commit wire fraud" and voila, you are now facing a maximum of 5 years. Based on your acceptance of responsibility, your sentence guideline will likely be lower. And if is willing to give them cooperation, then you get a rule 35 of 5k1 letter. A person sentenced to 60 months in prison may, can, when factoring good time credit, drug programs, cooperation reductions, and halfway house end up serving 12-18 months in prison. Is it any wonder that so many defendants choose to plead guilty? 18 months vs 20 years. Is it any wonder that so many people choose to plead out rather than go to trial?

The point of what I am pointing out is not the fact that the deck is stacked against the defendant (it is) the facts point to the issue of deterrence. For myself, as is the case with so many others, innocence or guilt are largely irrelevant when deciding when to take a plea. The prosecutors know this although they are supposed to only indict if they believe you to be guilty. The judge knows this too. So now let's assume that we have someone who is pleading guilty to a minor fraud that calls for 36 months in prison. We can assume the following: 1. His crime was not so egregious to warrant him being moved from society for an extended period (think Bernie Madoff). 2.He was facing more time had he gone to trial. 3.He will probably serve less than 18 months in actual prison, which will be in a camp setting, hardly a "deterrent".

So, what is the right approach? Let's put aside for now the fact that he was incentivized to not go to trial because of the risks of going to trial. That issue we will tackle in another blog. Did he know what he was doing was illegal? Maybe. If not, then clearly prison was not a deterrent. Is he so dangerous that he needs to be kept away from society? Most likely not. So, the only reason to send him away is retribution. But is there really retribution? He is going to be in a prison camp. Is he really suffering? The reality is that the people that are suffering are not the inmates; it is their families. It is the spouse who is alone to care for the family and the children that are left without a parent.

Many will still say that they do not care. You plead guilty to a crime, you need to go to prison. Consider this: the cost of housing an inmate is around $30,000 per year. As of this writing, there are a total of 190,452 federal inmates. (https://www.bop.gov/about/statistics/population_statistics.jsp) That is a total annual cost of about $5,713,560,000 or nearly $6 billion. A little over 26% of them, the bulk of where white-collar crime falls have sentenced of under 5 years. So, it is costing close to $1.43 billion per year for these low-level white-collar offenders; most of who took pleas. Now consider that if these offenders were not in prison they would, likely, have jobs. That means that they would be paying taxes. You would have 45,000 more people working. Many of these people would be business owners and would even be creating jobs. The median personal income for someone with a college degree is around $50 thousand. The federal income tax this person would be paying, assuming he is married is 6581 per year. That would be total tax revenue from out 45 thousand inmates of $296,145,000. Essentially, we have a nearly $1.75 billion swing by allowing these offenders to work. Furthermore, since this parent is working, his family would be less likely be eligible for access to social welfare programs such as food stamps and Medicaid. Then of course we have the non-monetary costs to the family. Would it not make a lot more sense to find other forms of punishment (community service, home confinement, financial restrictions), Does it make sense to incarcerate a doctor for insurance fraud and take away his license to practice medicine when his crime was financial and not related to his actual practice of medicine? Would it not make more sense to allow him to keep his license and utilize his skills to help underprivileged children? Finally, does it make sense that after he has paid his debt to society to prevent him from getting back to work.

Sadly, for white collar defendants there is no recourse at this time. The system is what the system is and until there is meaningful criminal justice reform, little is changing soon. Change takes time and unfortunately, for most defendants, time is a luxury we do not have. The key is to face the facts as they are today. To make decisions based on what is best for your family and the risks of going to trial. Going through the process, the fear of the unknown can be very stressful. The upside is that it will pass. Over the next few months I will continue to go over other issues that are very relevant to defendants who are under indictment or under investigation. These are things that I had to learn as I went through it but would have loved to have known earlier on. Your lawyers are there to handle to legal issues but there are some issues that they just simply won't deal with or cannot advise you on for a variety of reasons. I will be addressing topics such as factors going into choosing a lawyer, deciding on whether to plea, preparation for being indicted and going to prison, as well as other topics concerning white collar defendants. I will also be monitoring developments in criminal justice reform as well as prison reform and offering my opinion on them. Remember, unless I quote facts, everything I write is either learned from my seven years of experience with the criminal justice system or my opinions. I am not a lawyer and will not be able dispense legal advice.