The Power of the Prosecutor
The Power of the Prosecutor
C-Suite executives need a rigorous defense because of fundamental legal and cultural changes that have been well-documented in the media and elsewhere. The Economist recently published an interesting article entitled “The Kings of the Courtroom,” which describes the incredible power of prosecutors and how they have come to dominate the criminal justice system. The system is no longer intrinsically fair, but instead, is severely skewed in favor of the prosecution and the goal of obtaining a quick conviction. Most C-Suite team members, prior to a regulatory or criminal investigation, believe that the system is “fair” and that all they have to do is tell their story and the government will “understand.” In today’s environment, that belief is terribly naïve and dangerous.
Prosecutors exercise enormous unfettered power to destroy lives. Years ago the Attorney General of the United States stated: “[t]he prosecutor has more control over life, liberty, and reputation than any other person in America.” This is never more true than today. The trend toward the accumulation of prosecutorial power has tremendous consequences for the C-Suite. A full understanding of the legal environment is required to protect yourself and your business. Here is what I have seen over the last thirty years:
When an investigation begins, the first thing a prosecutor does is instill terror in those he or she is looking at. It is prosecutorial tactics 101. This means telling people that they are the subjects or targets of the investigation and could be prosecuted at the drop of a hat. Often a prosecutor sends out “target letters” informing individuals that they will be prosecuted unless they come in and talk to the government. The prosecutor characterizes these folks as “co-conspirators” in their target letters to heighten the fear level. A company focused on currying favor with the prosecutor will usually fire those who get target letters. But the message is clear—cooperate with us or else there will be hell to pay.
In the face of this terror and bullying, lower-level individuals often “cooperate” with the prosecutor against the C-Suite occupants. This means that a prosecutor will meet with “cooperators” for days and days, usually in the presence of overbearing agents, and try to mold testimony that comports with the prosecutor’s theory of the case. During these long interviews, the cooperators’ testimony can be sculpted so that there is little separation between what the prosecution believes and what the cooperators now “recall” as fact. It is a not-so-subtle dance that results in the eventual fabrication of testimony repeated at trial.
The prosecutor also controls the charges that can be brought against someone. In a standard case, this power allows the prosecution to charge multiple crimes for a single transaction to ratchet up the potential length of a sentence. Creative prosecutors also tack on money laundering or racketeering charges (RICO) to make the indictment appear even more ominous.
Cooperators may also be told that he or she must plead to an offense in order to increase their credibility with the jury. Most individuals cannot afford a defense in a white-collar case because it is just too expensive. Moreover, if a potential cooperator goes to trial and loses, the sentencing guidelines call for very long prison sentences. No one wants to roll the dice. So, given the choice of a plea and cooperation or going to trial, most cooperators select the former and hope for the best. In the federal system an individual who “substantially cooperates” (as defined exclusively by the prosecutor) can obtain a major reduction in his or her sentence. Substantial cooperation means telling the prosecutors what they want to hear. Not surprisingly, the cooperator becomes a hostage to the prosecution.
If the cooperator ever deviates from the prosecutor’s theory of the case, then she is threatened with the withdrawal of her plea agreement and a prosecutorial recommendation to the judge for a long prison sentence. As you can see, the system is rigged to favor the prosecution. Everyone involved in federal criminal law understands how the game is played, but few will speak up for fear of angering prosecutors and judges. Obstruction of justice and false testimony are the most pervasive characteristics of the federal criminal justice system.
For the most part, the courts encourage and enable this conduct. It is unheard of for a judge to exclude the testimony of a cooperator coerced by the threat of a criminal prosecution. On the contrary, the prosecutor is allowed to bolster the testimony by arguing to the jury that the cooperator had a bird’s eye view of the misconduct and decided to come clean.
Unlike prosecutors, defense counsel can offer nothing in return for testimony—in fact if we did, we would go to jail for witness tampering. The playing field is never even. More ominously, the prosecutor encourages all witnesses to refrain from speaking with defense counsel. Indeed, it is rare for us to have an opportunity to interview witnesses prior to trial. I rarely get to speak with or even see a witness before they appear on the witness stand and testify against a client. This is because, in federal criminal trials, there are no depositions or other forms of discovery that are available in the civil context. All of the relevant information flows away from the defense and towards the prosecutor.
And if this were not enough, prosecutors are given leeway to cheat without any adverse consequences. Although not permitted under the ethics rules, many prosecutors withhold exculpatory evidence tending to show that the defendant is innocent. This gamesmanship is the scourge of the criminal justice system, but very few judges do anything about it. If the prosecution is caught manipulating the process, the prosecutor will simply claim that the hiding of information was “inadvertent,” an explanation most judges will accept. Unfortunately, at this point, the harm has already been done. The defense has been deprived of critical evidence that could have saved their client from a guilty verdict.
I write about these things so that those who labor in the C-Suite will understand the seriousness of any criminal investigation and how protective measures need to be taken to prevent one from occurring. A client once told me that he hired me because he needed someone who knew how to “tussle with the alligators.” He was right.
Remember, be careful out there.