Category: Criminal Procedure


DPAs and Corporate Governance

In this season’s law review submission process, I am circulating an article about deferred prosecution agreements (DPAs) and corporate governance.    DPAs are controversial tools increasingly-used to settle corporate criminal cases, usually without indictment. Targets admit facts, pay fines and promise governance reforms—such as replacing officers, adding directors and prescribing reporting lines.

Some view DPAs as coerced extractions of overzealous prosecutors, while others say they are mere whitewash that let corporate crooks off the hook. The weight of commentary urges prosecutors to get out of this business, to avoid corporate governance entirely, while some wonder why the intrusions are not deeper and more frequent.

I explain why prosecutors should invest in corporate governance and take a measured approach to reforming it. Ignoring governance can be perilous and embracing it can produce more effective reforms.

My diagnosis indicates a lack of both investment and transparency so I make two prescriptions: prosecutors should profile the corporate governance of businesses they target at the outset and publicly articulate rationales for reforms when settling.

The paper first surveys the landscape of contemporary corporate governance, stressing two normative points. First: one-size-does-not fit all. Corporate governance varies enormously from company to company, depending on such factors as ownership structures, management characteristics and employment policies. Second: failure to appreciate that poses serious risks, always to given companies, and sometimes to the economy at large.

That is the proper lesson to draw from the 2002 case of Arthur Andersen, where an indictment destroyed the auditing firm because it was a partnership owned and managed by its members in the veracity business.

Instead, prosecutors took a broader and cruder lesson: that they should always be averse to indicting any large business. The result of that aversion has been the proliferation of DPAs—which, despite controversy and criticism, is not necessarily a bad effect, so long as these lessons are incorporated into their production.

Read More


Note to Senate: Ask Mary Jo White About DPAs

To show he is getting tougher on Wall Street, President Obama has nominated Mary Jo White, the former head of the U.S. Attorney’s office in New York, as chair of the SEC. White oversaw the prosecutions of John Gotti and the terrorists responsible for the 1993 World Trade Center bombings and is a veteran of white collar criminal prosecutions and defense.

Many Americans applaud such displays of toughness, worried that “too big to fail” means “too big to jail.” That is, criminal indictment of a large financial institution threatens its existence and, along with it, economic recovery.

But prosecutors are getting tough on big banks, evident in the recent LIBOR interest rate rigging cases, such as that against Royal Bank of Scotland announced this week, and the money laundering case at HSBC made at year-end. Prosecutors resolved these cases by obtaining admissions of guilt and large fines in exchange for deferring prosecution under agreements that require good corporate behavior for several years.

Under such deferred prosecution agreements, or DPAs, prosecutors flex their muscles by imposing extensive internal reforms at the company. Their goal is to change corporate culture to promote greater accountability and likelihood of compliance with law. Some terms, however, may go overboard, and there is reason to worry about unintended consequences.

Such deals typically require the company to hire an army of compliance officers to roam the company in search of rogues and to train employees in the best practices of compliance programming. In many cases, DPAs require hiring an outside consultant to direct additional steps to be taken and an independent monitor to watch over all the changes during the probation period.

But installing such personnel and programs is no guarantee of succeeding in promoting any particular culture or result. Corporations differ in their histories, philosophies, and business models, negating the possibility of a one-size-fits-all approach to altering culture in desired ways.   (For a dramatic example of the danger, consider the experience at AIG from 2005 to 2008, which I document in the new book The AIG Story, and which is summarized in this week’s review of the book in the Wall Street Journal.)  Prosecutors often do not understand corporate governance well enough to direct reforms and they rarely explain their reasons when they impose such changes. 

Prosecutors should enforce the law and hold people and institutions accountable for violations. When prudent they should settle a matter on terms that may include internal corporate reforms. But they also must make an effort to assure that the reforms they propose will work with the valid parts of the corporate cultures where they are implanted. Failure to do so can be disastrous. When the Senate evaluates Ms. White’s nomination for SEC chair, Senators would do well to ask what she thinks about using DPAs to reform corporate culture.


The Good Life and Gun Control

Like many of you, I’ve been horrified by the events in Newtown, and dismayed by the debate that has followed.  Josh Marshall (at TPM) thinks that “this is quickly veering from the merely stupid to a pretty ugly kind of victim-blaming.”  Naive realism, meet thy kettle!  Contrary to what you’ll see on various liberal outlets, the NRA didn’t cause Adam Lanza to kill innocent children and adults, nor did Alan Gura or the army of academics who helped to build the case for an individual right to gun ownership.  Reading discussions on the web, you might come to believe that we don’t all share the goal of a society where the moral order is preserved, and where our children can be put on the bus to school without a qualm.

But we do.

We just disagree about how to make it happen.

Dan Kahan’s post on the relationship between “the gun debate”, “gun deaths”, and Newtown is thus very timely.  Dan argues that if we really wanted to decrease gun deaths, we should try legalizing drugs.  (I’d argue, following Bill Stuntz, that we also/either would hire many more police while returning much more power to local control).  But decreasing gun deaths overall won’t (probably) change the likelihood of events like these:

“But here’s another thing to note: these very sad incidents “represent only a sliver of America’s overall gun violence.” Those who are appropriately interested in reducing gun homicides generally and who are (also appropriately) making this tragedy the occasion to discuss how we as a society can and must do more to make our citizens safe, and who are, in the course of making their arguments invoking(appropraitely!) the overall gun homicide rate should be focusing on what we can be done most directly and feasibly to save the most lives.

Repealing drug laws would do more —  much, much, much more — than banning assault rifles (a measure I would agree is quite appropriate); barring carrying of concealed handguns in public  (I’d vote for that in my state, if after hearing from people who felt differently from me, I could give an account of my position that fairly meets their points and doesn’t trade on tacit hostility toward or mere incomprehension of  whatever contribution owning a gun makes to their experience of a meaningful free life); closing the “gun show” loophole; extending waiting periods etc.  Or at least there is evidence for believing that, and we are entitled to make policy on the best understanding we can form of how the world works so long as we are open to new evidence and aren’t otherwise interfering with liberties that we ought, in a liberal society, to respect.”

Dan’s post is trying to productively redirect our public debate, and I wanted to use this platform to bring more attention to his point.  But, I think he’s missing something, and if you follow me after the jump, I’ll tell you what.

Read More


Convicting the Innocent: A powerful force for change

I also thank Danielle and Brandon for including me in this symposium, and am very happy to join the discussion of four very important works on the state of the criminal justice system in America today.

The reference to the Central Park Five in Danielle’s original post highlights one of the most important qualities of Convicting the Innocent: it uses the powerfully told stories of the exonerated to bring to life the new and important detail about the causes of wrongful convictions that Garrett’s research has uncovered. The result is the fullest picture to date of the scope of the “nightmarish reality” that has led to 301 DNA-based exonerations in this country.  Convicting the Innocent is not only a great read for lawyers and lay people alike, it is also a powerful tool for bringing about much-needed systemic change. Dan Medwed’s post appropriately asks whether the works being discussed here urge change that is gradual and specific or change that is revolutionary, going to the heart of the adversary system. In the context of eyewitness misidentification – the leading contributing cause of wrongful convictions, occurring in (as Garrett found) 75 percent of the first 250 exonerations – we see great success in effecting change in both courts and police precincts alike. Brandon Garrett’s research has been critical to these successful reform efforts.

As the attorney responsible for the Innocence Project‘s work in the area of eyewitness identification, I have relied on Convicting the Innocent in my efforts to educate attorneys, judges and policy makers about the perils of misidentification and the flaws in the current legal framework for evaluating identification evidence at trial that is applied in nearly all jurisdictions in the United States. That legal framework, set forth by the Supreme Court in Manson v. Brathwaite, directs courts to balance the effects of improper police suggestion in identification procedures with certain “reliability factors” – the witness’s opportunity to view the perpetrator, the attention paid by the witness, the witness’s certainty in the identification, the time between the crime and confrontation and the accuracy of the witness’s description. (These factors are not exclusive, but most courts treat them as if they are.)

Psychological research in the area of perception and memory has offered conclusive evidence that the identified reliability factors are not well-correlated with accuracy; do not objectively reflect reality to the extent that they are self-reported; and – most critically – are inflated by suggestion, leading to the perverse result that the more suggestive the identification procedure, the higher the measures of reliability under the Manson test.

Garrett’s work in Convicting the Innocent adds an important dimension to the psychological research – and makes even more urgent the call to reform the Manson test – by demonstrating that the Manson test failed in the cases of the 190 exonerees who were convicted based, at least in part, on identification evidence that was either not challenged or admitted as reliable under Manson. Garrett’s work shows just how the Manson reliability factors fail to ensure reliability: in most cases reviewed by Garrett, the witnesses had poor viewing opportunities; had only a few seconds to see the perpetrator’s face, which was often disguised or otherwise obscured; made identifications weeks or months after the crime; and provided descriptions that were substantially different from the wrongly accused’s appearance. In addition, almost all of the witnesses in the cases reviewed by Garrett expressed complete confidence at trial – stating for example that “there is absolutely no question in my mind” (Steven Avery’s case); that “[t]his is the man or it is his twin brother” (Thomas Doswell’s case) – although DNA later proved that these witnesses were entirely wrong. Perhaps most striking of all of Garrett’s research findings in the area of eyewitness misidentification is that in 57 percent of the trials with certain eyewitnesses, the witnesses had expressed earlier uncertainty (strongly suggesting that the identification was unreliable), but only 21 percent of these witnesses admitted their earlier uncertainty.

The Innocence Project has relied on Garrett’s research in advocating for the reform of the legal framework for evaluating identification evidence in courts around the country, from the U.S. Supreme Court (Perry v. New Hampshire) to state supreme courts from Oregon (State v. Lawson) and Washington (State v. Allen) to New Jersey (State v. Henderson) and Pennsylvania (State v. Walker). In two of these cases – Henderson and Lawson – high courts found that Manson fails to ensure reliability and implemented new legal tests that better reflect the scientific research and, we hope, will better prevent wrongful convictions based on eyewitness misidentification. Both the Henderson and Lawson courts cited Convicting the Innocent in rendering their decisions, demonstrating just how powerful a force for change Garrett’s work is.



Convicting the Innocent


That image is from the false confession of Ronald Jones, a man whose tragic story begins my book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong. In fact, it is an image of his entire false confession, at least the statement that the detectives had typed at the end of eight grueling hours of interrogation in Chicago in the mid-1980s. I turned the statement into a word cloud to illustrate the words that Jones had repeated the most. In his statement, Jones was unfailingly polite, and according to the police stenographer, at least, he responded “Yes, Sir,” as the detectives asked him questions. In reality, he alleged at trial, detectives had brutally threatened him, beat him, and told him what to say about a crime he did not commit. The jury readily sentenced Jones to death for a brutal rape and murder on Chicago’s South Side.

The word cloud shows why the jury put Jones on death row. Some of the most prominent words, after “Yes, Sir,” are key details about the crime scene: that there was a knife, that the murder occurred in the abandoned Crest hotel, that the killer left through a window. Jones protested his innocence at trial, but those facts were powerfully damning. The lead detective had testified at trial Jones told them in the interrogation room exactly how the victim was assaulted and killed, and finally signed that confession statement. The detectives said they brought Jones to the crime scene where Jones supposedly showed them where and how the murder occurred. After his trial, Jones lost all of his appeals. Once DNA testing was possible in the mid-1990s, he was denied DNA testing by a judge who was so convinced by his confession statement that he remarked, “What issue could possibly be resolved by DNA testing?”

In my book, I examined what went wrong in the first 250 DNA exonerations in the U.S. Jones was exonerated by a post-conviction DNA test. Now we know that his confession, like 40 other DNA exoneree confessions, was not just false, but likely contaminated during a botched interrogation. Now we know that 190 people had eyewitnesses misidentify them, typically due to unsound lineup procedures. Now we know that flawed forensics, in about half of the cases, contributed to a wrongful conviction. Now we know that informants, in over 50 of the cases, lied at trial. Resource pages with data from the book about each of these problems, and with material from these remarkable trials of exonerees, are available online.

Returning to Ronald Jones’ false confession, the Supreme Court has not intervened to regulate the reliability of confessions, such as by asking courts to inquire whether there was contamination, or simply requiring videotaping so that we know who said what and whether the suspect actually knew the actual facts of the crime. Typical of its rulings on the reliability of evidence in criminal cases, the Court held in Colorado v. Connelly that though a confession statement “might be proved to be quite unreliable . . . this is a matter to be governed by the evidentiary laws of the forum . . . not by the Due Process Clause of the Fourteenth Amendment.” Preventing wrongful convictions has largely fallen on the states. I end the book with optimism that we are starting to see stirrings of a criminal justice reform movement.


Read More


Recommended Reading: Starr and Rehavi on Racial Disparity in the Criminal Justice Process

Professor Sonja B. Starr and Professor M. Marit Rehavi have posted a fascinating new study on SSRN entitled Racial Disparity in the Criminal Justice Process: Prosecutors, Judges, and the Effects of United States v. Booker.  It presents new empirical research on the effects of United States v. Booker on racial disparity in the federal criminal justice system (including in prosecutorial decision-making).  The study challenges current thinking, finding that Booker has reduced –rather than exacerbated — racial disparity.  Professor Starr, my brilliant former colleague and faculty member of the University of Michigan Law School, presented this research in August at the Ninth Circuit Judicial Conference and in October at the National Sentencing Policy Institute, another federal judicial conference that also includes the US Sentencing Commission.



Volume 60, Issue 1 (October 2012)

Volume 60, Issue 1 (October 2012)


Not This Child: Constitutional Questions in Regulating Noninvasive Prenatal Genetic Diagnosis and Selective Abortion Jaime Staples King 2
A Labor Paradigm for Human Trafficking Hila Shamir 76
Prosecutors Hide, Defendants Seek: The Erosion of Brady Through the Defendant Due Diligence Rule Kate Weisburd 138


Trade Dress Protection for Cuisine: Monetizing Creativity in a Low-IP Industry Naomi Straus 182
What Happens in the Jury Room Stays in the Jury Room . . . but Should It?: A Conflict Between the Sixth Amendment and Federal Rule of Evidence 606(b) Amanda R. Wolin 262

Stanford Law Review Online: The Violence Against Women Act and Double Jeopardy in Higher Education

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Andrew Kloster entitled The Violence Against Women Act and Double Jeopardy in Higher Education. Mr. Kloster argues that proposed changes to the Violence Against Women Act have potentially serious implications for persons accused committing sexual assault in university proceedings:

The reauthorization of the Violence Against Women Act (VAWA), set to expire this year, has elicited predictable partisan rancor. While there is little chance of the reauthorization being enacted by Congress so close to an election, the Senate draft includes a provision that raises interesting issues for the rights of students involved in sexual assault disciplinary proceedings on campus. The Senate version of VAWA could arguably condition a university’s receipt of federal funds on a requirement that the university always provide an appeal right for both accuser and accused. Setting aside the massive rise in federal micromanagement of college disciplinary proceedings, the proposed language in VAWA raises serious, unsettled issues of the application of double jeopardy principles in the higher education context.

He concludes:

Whatever the legal basis, it is clear that both Congress and the Department of Education ought to take seriously the risk that mandating that all universities receiving federal funds afford a dual appeal right in college disciplinary proceedings violates fundamental notions of fairness and legal norms prohibiting double jeopardy. College disciplinary hearings are serious matters that retain very few specific procedural safeguards for accused students, and permitting “do-overs” (let alone mandating them) does incredible damage to the fundamental rights of students.

Read the full article, The Violence Against Women Act and Double Jeopardy in Higher Education at the Stanford Law Review Online.


Prosecutors, Gambling and Dead Horses

Should federal prosecutors who settled a tax fraud case with the New York Racing Association back in 2003 (amended in 2005) be kicking themselves? Besides commitments typical of criminal settlement agreements (called deferred prosecution agreements), to improve internal control and governance, this one required the NYRA to continue its best efforts to install gambling machines at the track. It finally did so last year and the results have included the deaths of 21 horses during the winter meet.

Gambling is a controversial topic and New York State politicians had in 2003 just begun a push to expand the kinds of gambling that are legal in the state, starting with video gaming machines at horse racetracks. Why federal prosecutors settling a criminal tax suit should have anything to say about the NYRA’s role in advancing this agenda is not clear. Prosecutors did not explain their reasoning when signing the DPA.

In any event, the NYRA worked earnestly to move its gambling program along amid growing political and legal controversy in the state over gambling. It finally prevailed, opening a gambling emporium at the Aqueduct track in Queens in October 2011. In the ensuing season, an astonishingly high number of horses — 21 — died while racing.

In March, Governor Andrew Cuomo formed a task force to investigate and in May took state control over the track from the NYRA. The task force released its report last week identifying numerous causes for the deaths and prescribing extensive reforms of the NYRA and Aqueduct operations. Among the culprits: casino funding was allocated to massively increase awards to owners of winning horses in lower-level claiming races. Read More