shortly after its indictment in 2002 for allegedly obstructing the government's investigation of fraud at Enron Corp. (The accounting firm was later convicted of obstruction, but the Supreme Court overturned the verdict last year.) "Prosecutors can now force individuals to pay their own attorneys' fees," Prof. Podgor says, "and corporations have to go along."

Justice Department spokesman Brian Roehrkasse disingenuosly responded by suggesting that "the government does not force corporations to do anything." If a company declines to advance fees, "that is a business decision made after weighing all of the costs and benefits of cooperation."

Yeah, right. Let's see, here. Is the company better off with the cost attributable to breaching its obligation to pay the defense costs of an executive accused of a crime? Or of fulfilling that obligation, but being indicted out of business? Faced with that "choice," what company wouldn't elect the former?

So it goes with regard to the prosecutorial abuses (partial lists here, here, here and here) that are making a mockery of our criminal justice system in the post-Enron era of criminalizing business. As Larry Ribstein wryly notes:

Apparently the presumption of innocence isn't what it used to be. But then, as a law professor was recently was quoted as saying, letting defendants pay lots of money to defend themselves could "undermine the deterrence idea of white-collar crime prosecution."

Come to think of it, wouldn't we get more deterrence if we dispensed with those pesky trials?

Posted by Tom at March 28, 2006 06:02 AM

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