Saturday, December 22, 2007

US Injustice System at Work

"In a rare case of a lawyer being charged in connection with the alleged wrongs of a client, an Illinois attorney was indicted on fraud and other charges in connection with the 2005 collapse of commodities and derivatives firm Refco Inc. Federal prosecutors in Manhattan yesterday announced 11 counts against Joseph Collins [JC], now on leave from the law firm Mayer Brown [MB], LLP, in connection with his legal work for Refco, including documenting a series of 'round-trip loans' between related entities and outside investors that allegedly were designed to shift bad debt off Refco's books from 2000 to 2005. ... [MB] wasn't named in the indictment. Lawyers are rarely charged criminally in connection with a client's alleged fraud. In the collapse of Enron Corp. for example, outside lawyers weren't charged. ... Michael Garcia, U.S. Attorney for the Southern District of New York [SDNY] [said] ... 'No lawyer will be prosecuted unless that lawyer knows about the client's fraud and agrees to join in it, understanding its unlawful nature'," WSJ, 19 December.

"Fewer than 2% of civil cases went to trial in 2002, down from 11% 40 years earlier. The decline has come as busy courts increasingly emphasize efficiency in resolving claims, often at the expense of a just result says [Neal] Ellis. ... Underlying those factors says Mr. Ellis, is a bigger problem: The growing fear that jurors are too unsophisticated and too easily swayed by emotion to render fair verdicts in increasingly complex cases. ... Without reform he warns, Americans' confidence in the judicial system, including the right to trial by jury enshrined in the Seventh Amendment, will be dangerously undermined", WSJ, 20 December.

"With the recent announcement by federal authorities that they would not pursue a criminal investigation of police and prosecutors in the Duke Non-Rape, Non-Kidnapping, and Non-Sexual Assault Case, we pretty much have come to a dead end in the sorry aftermath of this affair. As one who has been immensely critical of the federal criminal system in general, I must say that while I am not surprised at the outcome, nonetheless the pure cynicism that came from the U.S. Department of (In)Justice was shocking even to someone as jaded as I have become. ... [T]he feds made the following announcement: 'We believe the State of North Carolina has the primary interests in this matter: protecting the integrity of its judicial proceedings, holding Mr. Nifong accountable for his actions as an officer of the courts, and vindicating the principles of justice under state law." ... This comes from the same DOJ(In) that saw no problem in prosecuting and convicting Michael Vick despite the fact that there are no specific federal statutes regarding dog fighting, but that such statutes exist in Virginia law. Now, there are specific federal statutes for obstruction of justice, and for misusing federal funds. ... In most circumstances, ... I ordinarily would welcome such 'restraint' from the feds. ... I realize more than ever that the [US] has become a country that is run by political rogues, and no more is that apparent than with federal and state prosecutors, and 'law enforcement' officials. Indeed, if one wishes to be a lifelong criminal--and get away with it--I would strongly recommend going to work in a prosecutor's office or become a member of a federal, state, or local law enforcement agency. ... So, we have one more example of police and prosecutors committing real crimes and being able to walk away without a scratch", William Anderson at, 14 December.

JC's indictment is rare as he is a major law firm partner. Michael Garcia (MG) may still work for MB when he leaves government service; why wasn't MB indicted? I presume because MG wants "to keep his options open". Hey, MG have you heard of a "wilful blindness" or "ostrich" jury instruction? I believe it's West's criminal law key 785. Study up, Mike. You need not show the lawyer" knew" anything. MG, must you have the lawyer's affidavit written while drafting the client's documents that the client said the documents were being prepared to further a fraud in progress, for the Second Circuit Court of Appeals to sustain his conviction? The jury may infer knowledge from actions. Or his choosing not to know, by ignoring what was plainly to be seen? What do law schools teach anyway? Hey MG, do you get practice pointers from Mary Jo White? See my 10 August and 12 September posts. Also see my 24 October post mentioning Graffam v. Burgess. MG, as far as I know, Graffam is still good law. It's a Supreme Court Case, ergo it's good law. Even in the SDNY.

I have little confidence in the judicial system. That many lawyers lack confidence in juries is a result of their elitism and fear. I lack confidence in lawyers and judges. Many are innumerate and scientific ignoramuses. I remember when the Supreme Court came down with Daubert, thinking: do the Supremes think Federal District Court Judges are budding Richard Feynmans, who will smoke out scientifically questionable claims? One reason for the decrease in jury trials is summary judgment abuse by judges who grant it to clear their calendars. Further, jurors don't want to sit. Why should they, if the judge can grant JNOV on a whim? Who needs it? Fear?

I agree with Anderson about the Vick prosecution. As to federal prosecutors discretion, see my 30 November post about Robert Morgenthau.

"In fact, after three years of law school and another seven years of actually working with lawyers, I can say that a lot of them actually fear numbers. ... I've watched managing partners spend thousands on consultants, apparently believing that some kind of black magic was involved, when those consultants' studies could have been assembled by any self-respecting MBA at a fraction of the cost", Take the Bar and Beat Me, Woodcock, Raymond, 1991, p 46. "I wouldn't say that math is beyond the grasp of those attorneys who fear it. ... They remain ignorant of quantitative procedures, and tend to forget even the math they used to know. But that doesn't stop them from thinking that they're brilliant, nor from handling highly numeric problems when perhaps they shouldn't", 47. "You don't philosophize, anymore, when you want to know something about the real world. ... If you're as non-scientific as the most muddled philosopher, and if you don't want scientists telling you to butt out because you don't know what you are talking about, my advice is this: Don't go into philosophy. Go instead into law. Law is perhaps the last refuge in our world for those who, knowing nothing, wish to assume that they know more than enough", 48. What's the problem: lawyers can't assemble cases because they can't get to the substantive issues. They can't evaluate evidence.

An "OJ" murder case incident illustrates. A prosecution "DNA expert" said the odds against a DNA sample match were: 57 billion to one! The "expert", who Marcia Clark and Chris Darden (MC&CD) put in front of the much maligned OJ jury, helped acquit OJ. Why? The jurors, those racist ignoramuses, realized the earth's population was 6.2 billion. Ergo, if everyone on earth got a DNA test, the odds against a match could not exceed 6.2 billion to one! The jurors came up with the "statistical independence" concept by themselves! But none had say, a Princeton mathematics degree. So? I followed the OJ case. I believe MC&CD's case was a mess. I would have acquitted OJ! Whaaaat? But "the blood"! MC&CD spent seven months proving OJ was an accessory after the fact to murder! Whether one drop of blood or a hundred, the blood went to one issue: OJ's presence at the crime scene, not what he did there. OJ was not charged as an accessory. A jury can consider what: it saw and failed to see. There was no: weapon, theory of the crime or motive presented. A wonderful case. The mythical Hamilton Burger of Perry Mason, 1957-66, would not have tried the OJ case. See also my 12 November post.

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