{"id":2132,"date":"2015-10-26T14:22:02","date_gmt":"2015-10-26T14:22:02","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/lpr\/?p=2132"},"modified":"2020-01-27T22:53:58","modified_gmt":"2020-01-27T22:53:58","slug":"a-blow-to-the-office-how-we-think-about-failed-prosecutions","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2015\/10\/26\/a-blow-to-the-office-how-we-think-about-failed-prosecutions\/","title":{"rendered":"A \u201cBlow\u201d to the Office: How We Think About Failed Prosecutions"},"content":{"rendered":"

By HLPR Online Staff<\/em><\/p>\n

Prosecutors seem to be caught in a bind.<\/p>\n

Last week, the Manhattan D.A.\u2019s high-profile fraud trial against three former leaders of the now-defunct law firm Dewey & LeBoeuf came to an anticlimactic end with the judge declaring a mistrial<\/a>. \u00a0After more than 22 days of deliberation<\/a>, the jury agreed to acquit on some charges, but deadlocked on the majority of the more than 150 counts.\u00a0 The press characterized the result as a \u201cblow<\/a>\u201d for District Attorney Cyrus Vance.<\/p>\n

Several weeks before, the U.S. Attorney for the Southern District of New York, Preet Bharara, suffered his own \u201cblow<\/a>\u201d when the Supreme Court denied cert. from a Second Circuit decision <\/a>overturning two major insider trading convictions. \u00a0The convictions were part of Bharara\u2019s larger crackdown<\/a> on insider trading in the hedge fund and expert networking industries, with the Second Circuit\u2019s decision forcing Bharara to drop charges against seven others who were part of that effort\u2014itself another \u201cblow.<\/a>\u201d<\/p>\n

At the same time, the political winds are turning fast in the direction of more individual prosecutions in corporate white-collar cases.\u00a0 What started as a critique<\/a> about a lack of C-suite prosecutions stemming from the financial crisis has now hit the mainstream.\u00a0 The Justice Department recently announced a policy shift<\/a> toward increasing its focus on individuals when investigating and prosecuting corporations, and Hillary Clinton has made individual prosecutions a central tenet<\/a> of her plan to regulate Wall Street.<\/p>\n

For the Justice Department, this is a sharp departure from practice.\u00a0 Since even before the financial crisis its preferred strategy<\/a> has been to charge the firms themselves, enter into deferred- or non-prosecution agreements, extract enormous fines, and monitor the firms as they institute new compliance measures.\u00a0 It\u2019s a nice method for the government because it involves no trials, no appeals, no juries\u2014so no opportunity for the government to lose.\u00a0 The problem, however, is that it quickly starts to look like culpable employees are getting away with murder, while shareholders are left footing the bill for massive fines.\u00a0 Moreover, these sorts of corporate crimes\u2014on Wall Street and elsewhere\u2014seem to keep happening<\/a>.\u00a0 So the conventional wisdom has now become that we need the deterrence that only the threat of jail time can offer.<\/p>\n

The thing about prosecuting individuals, however, is that it can get messy.\u00a0 Unlike corporations, which will practically always settle charges<\/a>, individuals sometimes exercise those pesky constitutional rights to trial. \u00a0And with trials comes swaths of unpredictability: judges, juries, witnesses, appeals. \u00a0This means that sometimes the government is going to lose.\u00a0 And here is where prosecutors find themselves in a bind: on the one hand they are supposed to be focusing on individuals in white-collar cases, but on the other every time this riskier strategy results in a loss the prosecutor is chastised.<\/p>\n

Addressing this issue requires more than just recognizing that prosecutors have a tough job to do.\u00a0 It\u2019s prosecution 101 that you shouldn\u2019t bring charges unless you are convinced that the defendant is guilty and you can prove it.\u00a0 The human cost to a defendant of being charged with a crime and facing trial is tremendous even if the end result is acquittal.\u00a0 But even when bringing the case was the right decision at the outset, the unpredictability of trial will sometimes mean that the prosecutor still loses. \u00a0And in these cases, we need to stop thinking about their result as a \u201cblow\u201d to the Government. \u00a0\u00a0This common view has the potential to chill the exact thing that so many are clamoring for: a focus on individuals over corporations in white-collar cases.\u00a0 In the end, if everybody plays their part right\u2014the prosecutor properly brings charges, the judge fairly adjudicates, and the jury fairly finds for the defendant\u2014then that\u2019s not a blow, that\u2019s justice.<\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

By HLPR Online Staff Prosecutors seem to be caught in a bind. 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