Ellen Podgor on the Trial Penalty

Stetson College of Law Professor Ellen S. Podgor, who authors the popular White Collar Crime Prof Blog, has written an important law review article on a key issue that is confronting defense attorneys and courts in this age of criminalizing merely unpopular business people and practices — the onerous trial penalty that a defendant faces for electing to exercise the right to force the government to prove guilt beyond a reasonable doubt:

This Article  .  .  . shows that innocence is no longer the key determinant in some aspects of the federal criminal justice system, even for those charged with white collar offenses. Rather, our existing legal system places the risk of going to trial, and in some cases even being charged with a crime, so high, that innocence and guilt no longer become the real considerations. This is especially true for upper level white collar offenders like CEO’s and corporate entities.

In these cases maneuvering the system to receive the least onerous consequences may ensure the best result for the accused party, regardless of innocence. Arthur Andersen LLP, Jamie Olis, and Jeffrey Skilling proceeded to trial after criminal charges were brought against them. In contrast, KPMG, Gene Foster, and Andrew Fastow secured plea agreements or deferred prosecution agreements with reduced sentences and finite results. As one might imagine, the latter group’s sentences or fines were significantly below those of the individuals and entities that proceeded to trial. The pronounced gap between those risking trial and those securing pleas is what raises concerns here. [.  .   .]

The reward of a “not guilty” verdict at trial comes at a high cost. There is the high cost of going to trial, a cost that far exceeds the typical street crime because of the long investigation and trial and in large part be-cause these cases are predominantly a product of documents. It can also be a short-lived verdict when the government decides to proceed against the individual with a second prosecution, even after a not guilty finding. [.  .  .]

This means that innocence or guilt does not frame the judicial process in white collar cases. The risk of trial becomes so great that in order to minimize the possible consequences innocence becomes an irrelevancy. Although the plea bargain to trial differential existed for many years in crimes outside the white collar crime context, the high sentences now being given to individuals and entities charged with white collar crimes place those crimes in comparable stead with street crimes. This gives pause to whether the next phase of wrongful convictions might move beyond street crimes into the white collar world.

My sense is that many prosecutors these days have come to the conclusion that merely obtaining an indictment in a business-related case means that they probably won’t have to bother with a trial — the trial penalty that the defendant faces will almost always prompt a plea bargain.

Thus, the indictment itself has become the punishment for risky business behavior that prosecutors simply do not like.

We live in scary times, indeed.

2 thoughts on “Ellen Podgor on the Trial Penalty

  1. We should not feel sorry for these business executives. They often have funded their own destruction. These silly people donated vast sums of money to left-wing Democrats and “moderate” Republicans. On top of that, leftist ideologues like Jesse Jackson and Al Sharpton, Jr. received millions of their dollars over the last four decades. Radical left-winger Barack Obama obtained roughly eighty percent of all the money donated by the investment community. He appointed Eric Holder to lead theU.S. Justice Department.
    The greedy Enron folks have done enormous damage to the United States by pushing their global warming nonsense. They didn’t give a damn about anything but jacking the system. These morally deficient creeps also made sure that citizens like me can’t get justice in America today. I am too white! So-called Title Seven protections are only for black people and other “minorities.” We poorer Caucasians are perceived to be scum of the Earth and easily thrown into the garbage dump. Never forget that the major corporations caved in to the affirmative action hustlers. They made sure that I would personally pay the price for their nonsense. I hold them in utter contempt. Thank god for cosmic justice. Historians debate whether Lenin actually said the capitalists will ultimately provide the rope to their own hanging. Nonetheless, the evil Communist leader should have said it. That is most certainly the truth of the matter.

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