(844) 815-9632

Cases of Interest

Christina Swarns argues racial bias before U.S. Supreme Court

Christina Swarns, director of Litigation for the NAACP Legal Defense & Education Fund, Inc. argued Buck v. Davis before the United States Supreme Court in October of this year. Buck is a case which involved the Fifth Circuit’s denial of a Certificate of Appealability (COA) to a Texas death row inmate on his death sentence appeal based on the argument that his trial counsel was constitutionally ineffective for knowingly presenting a defense expert who testified that Buck’s identity as a black man increased the likelihood of his future dangerousness (likeliness of future dangerousness is a factor used in Texas courts to justify the death penalty over life in prison). It of course defies all logic why Buck’s counsel would have called a witness to provide this testimony, but such illogical and self-destructive tactics lay at the heart of Buck’s ineffective counsel argument. What made the denial of the COA so egregious was that the state of Texas had, in 2000, released a statement indicating that it would not object to death penalty appeals made on the basis of this exact expert’s testimony (notably, all of the other appeals had been based on the prosecution’s use of the “expert,” making the defense’s use of the expert all the more bewildering). Yet, during the argument before the Supreme Court the Solicitor General for Texas tried to distinguish that assurance between cases where the State called the expert versus when the defense had called the expert. That argument didn’t appear to be persuasive, as having your own attorney introduce such racially charged and damaging evidence would certainly seem to support an ineffective assistance of counsel argument. By all accounts the Justices seemed inclined to rule in Buck’s favor, with even Justice Alito commenting that the use of the testimony was “indefensible.” While the arguments and pending decision in Buck are highly relevant to those who work in the defense bar, what was also highly notable about Swarns’ argument in Buck was that it was one of very few occasions that a black woman has argued before the Supreme Court of the United States. Over the history of this country, those attorneys arguing before the Supreme Court have usually been white and usually been men. But this once highly exclusive club is changing, albeit slowly. Diversity in the highest court both on and in front of the bench continues to be an aspirational goal, and Swarns’ argument in October is a great step forward. Christina Swarns is an inspiring example to all female attorneys and attorneys of color desiring to help in the cause of justice. Swarns started out at the Legal Aid Society in Manhattan, and then began dedicating herself to death-penalty work at the capital unit of the Philadelphia Federal Community Defender’s Office. She later joined the Legal Defense Fund, first as Director of the Criminal Justice Project in 2003. In 2014, Swarms became the organization’s Director of Litigation. Swarns is considered a national expert on death penalty and race and speaks throughout the country on the issue. She was profiled in an ABA article titled Lady of Last Chance as well as in the Washington Post. In 2014, Christina was selected by the faculty of the University of Pennsylvania Law School to be an Honorary Fellow in Residence, an honor given to an attorney who makes “significant contributions to the ends of justice at the cost of great personal risk and sacrifice.” Christina Swarns is an attorney whose ongoing dedication to living out a commitment to public service on behalf of defendants makes her a true champion of justice. The post Christina Swarns argues racial bias before U.S. Supreme Court appeared first on Women Criminal Defense Attorneys.
continue reading

Why Trial Should Be an Option for Corporate Defendants

The Pacific Gas & Electric Co. (PG&E) company was just convicted on 6 out of twelve felony counts relating to the 2010 San Bruno gas explosion that caused death and massive property damage because of a deteriorated portion of the pipeline. I understand that my title seems strange in light of this conclusion but keep reading. The company was charged with eleven counts of violations of pipeline safety laws and one count of obstruction. They were convicted of five of the pipeline safety violations and one obstruction count. The trial lasted over a month and jurors had begun deliberating, when in a surprising move, the prosecutors informed the court last week that they wanted to reduce the criminal penalties they were seeking from PG&E from $562 million to only $6 million. Yes, you read that correctly: an approximately 99% reduction in the amount of penalties sought. Now with a conviction they face only a maximum penalty of $3 Million. This unexpected move by prosecutors is unquestionably a significant victory for PG&E in spite of the conviction. What strikes me is that this is yet another example of a corporation reaping the benefit of going to trial to defend against a government accusation of criminal conduct, rather than plead out by reaching an expensive, non-prosecution agreement or other costly settlement.  I think it is safe to assume that during plea negotiations either prior to or after the prosecution’s indictment that the fines proposed by the federal government far exceeded $6 million.  That is because it is easy to talk tough when your evidence or theories of the case aren’t being tested in a courtroom in front of a judge or jury.  It’s one thing to champion a winning theory or your evidence in a conference room – but you put your money where your mouth is so to speak – in the courtroom.  I recently blogged about a similar situation in a criminal case brought against FedEx in which the judge dismissed some charges against the shipping company at trial and prosecutors later voluntarily dismissed all the remaining criminal charges.   The prosecutors’ request to lower the proposed fine against PG&E to $6 million is a huge shift from their original position of $562 million, and it could be compared to an individual being charged with a felony which prosecutors then later reduce to a misdemeanor in the middle of trial. But this appears to be such a drastic reduction that one has to wonder if the Government’s pursuit of such a high penalty was anything but bluffing. When more and more corporate defendants start to stand up to the government rather than automatically thinking their only option is to “cooperate” then maybe we will start to see indictments based on stronger evidence, or criminal investigations that are simply ended because there is not enough evidence to win at trial. The post Why Trial Should Be an Option for Corporate Defendants appeared first on Women Criminal Defense Attorneys.
continue reading

Dismissal of FedEx Criminal Charges Should Embolden Corporate Defendants

When the federal government alleges or investigates criminal conduct against a corporation, it is rare for the corporation to put up a sustained fight against the allegations. Because the government can seem to have leverage to affect the public image and investor perceptions on corporations, those corporations often want to resolve criminal investigations before charges are ever brought and even before the criminal investigation is ever made public. In many cases, attorneys representing the corporation cooperate with the government from the outset of the investigation. And if the criminal investigation is made public, any criminal issues are resolved through either a Non-Prosecution Agreement (NPA), a Deferred Prosecution Agreement (DPA), or the company pleading to an agreed upon Information and penalties. Prior to such an agreement, companies and their outside counsel often conduct their own internal investigations and hand over evidence gathered and legal conclusions directly to the federal government in the hopes that the government will not bring criminal charges, or at the very least agree to a reduced penalty, based on this cooperation. With this atmosphere, the officers and directors of a corporate defendant may wonder how it is possible to provide the federal government with all the evidence it needs to make its case while at the same time defending itself. And even when the government compiles its own evidence many companies decide that it is far too risky or costly (it is unclear if this is true considering that companies rarely test this belief) to go to trial to defend themselves, and so opt to settle with the government rather than put up a fight. What has resulted is an environment where evidence and theories of prosecution remain unchecked and unchallenged. Anyone can champion a winning theory or positive summary of their evidence in a conference room – where it matters is in the courtroom. So it came as a refreshing change of pace when FedEx chose to fight criminal charges brought against it for its alleged role in delivering pharmaceuticals illegally prescribed through online pharmacies. FedEx faced potential criminal fines of $1.6 billion but had the courage to require the Department of Justice to prove its case in the courtroom. It also came as no surprise that when gearing up to fight the charges, Fedex retained an attorney known as a fierce defender, Cris Arguedas, of Arguedas, Cassman & Headley, LLP. Arguedas and the defense team won their first major victory in March of this year when the judge dismissed many counts because the prosecutors charged the wrong entities and the statute of limitations limited their ability to amend the charges. The parties agreed to a bench trial before United States District Judge Charles Breyer for the Northern District of California which started June 13th. After only a few days into the trial, the prosecutors dismissed all remaining charges against FedEx, giving the company and Arguedas a major and well-deserved victory. What does this mean for the future of corporate criminal investigations and cases? I personally hope it will serve as a wakeup call to other corporations. I have often wondered what would happen if all corporations and outside counsel just refused to continue conducting internal investigations on behalf of the federal government. The system would collapse as we know it, because there simply aren’t enough prosecutors and investigators to support it. The federal government has done a masterful job of outsourcing investigations to the private sector and the loser is not only the corporation, but all citizens. Our system is at its best when it is adversarial. That is what our constitution intends. That means that evidence is challenged and tested. That means the government has the burden to introduce its own evidence and prove beyond a reasonable doubt that a crime has taken place. But, instead, what has developed over time is a government who acts like an emboldened bully, forcing corporations to hire outside counsel to do its work for them and assume a non-adversarial posture for fear of losing cooperation credit. It’s time that more and more companies stand up to the bully in the room – thankfully we still have companies like FedEx and attorneys like Cris Arguedas who are willing to do just that. The post Dismissal of FedEx Criminal Charges Should Embolden Corporate Defendants appeared first on Women Criminal Defense Attorneys.
continue reading

Current Happenings by and for Women in White Collar Defense

Amy Greer from Morgan, Lewis & Bockius represented three AIG affiliates in 9.5 million settlement with the SEC. According to the charges, the AIG affiliates steered mutual fund clients toward more expensive share classes, which resulted in them collecting approximately $2 million in extra fees.  The firms entered a settlement where they neither admitted nor denied the charges. They agreed to the disgorgement of the two million dollars in fees, plus interest and 7.5 million in penalties.    Catching Up with Other Women White Collar Criminal Defense Lawyers I recently attended the ABA White Collar Conference in San Diego, which resulted in some great opportunities to connect with other women in the field. The annual Women White Collar Defense Association had its annual event in La Jolla the day before the conference began. The ABA Women White Collar Subcommittee also held a reception for women white collar lawyers on the first night of the conference. There was also a fascinating panel discussion titled “Women in the Courtroom: a View from the Jury Box,” which presented a new study on the role of gender in the courtroom and its effect on jurors, which I hope to highlight in the future. Sally Yates Discussed the Infamous Yates Memo The ABA 30th Annual National Institute on White Collar Crime Seminar included an important question and answer style interview with Deputy Attorney General Sally Yates about the now famous “Yates Memo.” In her Q&A Sally Yates appeared open and approachable in her effort to directly address some of the questions and concerns about the new policy.  At one point she comically noted that she wasn’t comfortable calling the new policy the “Yates Memo,” and preferred to call it the individual culpability memo.  It is a must listen to for anyone working in the white collar defense sector – you can listen to it here. Caldwell Denies Certification Requirements Finally, although I missed it in person, there were reports that Leslie Caldwell rejected media statements that the Department of Justice would soon require corporations to certify they disclosed all information about individual culpability before they would be granted cooperation credit. In her remarks during the conference, Caldwell denied that any certification requirement was being planned for the future. Read what others lawyers present reported here. The post Current Happenings by and for Women in White Collar Defense appeared first on Women Criminal Defense Attorneys.
continue reading

Florida Bar Study Reflects Shameful Statistics for Young Women Lawyers

The Florida Bar’s Young Lawyer Division just released a random survey of young women lawyers who are 35 years or under or who have been practicing for five or less years.  The results reflect that 43% of the women surveyed reported experiencing some form of gender discrimination.  Not surprisingly, the survey has received national attention such as here and here. The ABA Journal summarized the findings of the survey as 43 percent said they had experienced gender bias in their careers. 40 percent said they had experienced insensitivity by their employer or supervisor. 37 percent said they had experienced lack of recognition of work-life balance. 17 percent said they had experienced harassment. 21 percent said they believed they were not being paid the same as their male counterparts. What is so sobering about these statistics is that they belong to the young women just entering the profession. The personal accounts shared by the women who participated in the survey, are not a shock to any woman reading this blog who became a lawyer twenty years ago. But the reality that gender bias is still pervasive and affecting a high percentage of young women lawyers entering the profession today is disturbing. The personal accounts included descriptions of being drunk-dialed by senior partners, offers by opposing counsel to run away together, or being assumed to be a court reporter or the boss’s assistant while seated at counsel table.  Many of the young women lawyers reported being called “blondie,” “little lady lawyer,” “honey,” or “sweetheart” by other attorneys and judges both inside or outside of the courtroom.  Women described being told they didn’t need to worry about making money because they either had or would have a husband to cover living expenses.   The Florida Bar President Ramon Abadin was quoted in the Sun Sentinel as saying that the 90 pages of comments in the report “were just sobering. It’s like a bucket of cold water.” Read the comments from the actual survey here. I for one, am embarrassed that women that have been in this profession for less than five years still have to endure this kind of discrimination. So how do we begin to resolve these problems? First, openly discussing them is a great start. Secondly, men in the field that are participating in this kind of behavior need to be exposed.  Finally, women that have been in the field for many years need to take stock and ask themselves if they are doing everything they can to affect change for themselves, other women in the field, and for women that will follow.   I believe that a culture of fear has existed among women lawyers for many years. This culture promotes women minimizing and criticizing any other woman that complains about bias. This culture promotes women staying silent rather than speaking up against blatant discrimination in fear of affecting their own advancement, losing a referral source, or losing a seat at the table of men. This hasn’t had the effect of stopping bias- it has allowed it to grow and fester. I do not intend to blame other women for what are obvious and intentional acts of discrimination but women have the power to reach out to help one another and there is simply no excuse for continuing to refuse to do so based on a false sense of fear. Even if a few of us succeed by remaining silent in the end we all lose. The post Florida Bar Study Reflects Shameful Statistics for Young Women Lawyers appeared first on Women Criminal Defense Attorneys.
continue reading

Lisa Cahill Represents Woman Exonerated After Serving 10 Years

Most independent observers don’t realize this, but the judicial system is stacked against our clients in every way. We get a front row seat to watch the injustices pile up every day. And we face defeat far more often than we experience the sweetness of victory. That may be why, when our advocacy results in a victory for a client, that success is forever etched in our minds. Some of the obvious examples are Not Guilty verdicts, a motion granted, or obtaining a sentence variance or mitigation. But one of the most powerful moments you can experience as a criminal defense lawyer has to be standing with someone exonerated after serving time based on a wrongful conviction. I have only had this experience once in my career, but that moment could carry me for a lifetime. The sense of relief and joy is overwhelming. When someone finally listens to cries that had previously fallen on deaf ears, the catharsis is both surreal and hard to fully grasp in the moment. Lisa Cahill shared such a moment with her client last week. Cahill represented Vanessa Gathers along with the Legal Aid Society and helped to vacate Gather’s manslaughter conviction. Gathers spent 10 years in prison based on a coerced confession, which was the only evidence presented at trial. Her exoneration is related to a string of wrongful convictions at the hands of Detective Scarcella, whose questionable tactics of investigation in multiple murder cases recently came to light after many years. Reading about his means-to-an-end attitude in obtaining convictions is both revolting and chilling. As Cahill properly notes, many people’s lives were destroyed and damaged by his actions. At the hearing to vacate the conviction, The New York Times quoted Cahill honoring Scarcella’s victims: “Today is a joyous day for all of us, but there is a bittersweet tinge to all this, and that is the victim and his family,” she said. “In many respects they were as much victims of Detective Scarcella as Ms. Gathers was.”  What a great victory for the client and for Lisa Cahill! Cahill’s grace in the moment of victory must be commended. She stood tall with her client and demonstrated the heart of a champion.   The post Lisa Cahill Represents Woman Exonerated After Serving 10 Years appeared first on Women Criminal Defense Attorneys.
continue reading

Erlinda Johnson representing New Mexico Secretary of State in emotional sentencing

Earlier this week, New Mexico’s former secretary of state was sentenced before a Judge in Santa Fe, New Mexico. She pleaded guilty to embezzlement charges relating to the use of her election campaign account funds — the money was used to fund her personal gambling habit. An emotional Dianne Duran offered heartfelt apologizes for her actions, but ultimately the Judge felt that the recommendation to sentence her to no jail was too lenient. The interesting part of the deal was that former secretary of state, Dianne Duran, pleaded guilty to the charges based on a plea agreement with the Attorney General’s Office, which allowed her to withdraw the plea if she was sentenced to jail time. Both her attorney, Erlinda Johnson, and the Attorney General’s Office recommended a non jail sentence. Duran pleaded to two felonies and four misdemeanors for stealing campaign donations.   The Judge rejected the recommendations as too lenient and instead sentenced Duran to 30 days in jail followed by 5 years’ probation and approximately $28,000 in fines and restitution. In addition, she must prepare written apologizes to her victims and to six newspapers as well as make 144 public appearances in front of schools and civic groups to caution people about violating the public trust as a politician. The Judge also ordered GPS monitoring for two years to ensure that she doesn’t enter any more casinos. The Judge gave Duran until Wednesday to decide to withdraw her plea and face a trial in the original 65 count charging document. Strangely enough, the Judge also expressed his own desire that she not withdraw her plea. “Ms. Duran you’ve asked this court for the opportunity to rehabilitate yourself,” Judge Ellington said. “That opportunity is standing before you. It starts Friday at 9 a.m. when you walk through the front door of the Santa Fe County Detention Center.” Although I can’t speak to how unique it is in New Mexico to allow a defendant the right to withdraw a plea if the sentence does not comport with the plea agreement, it certainly creates a lot of interesting legal issues. Considering that Duran asserted her guilt to at least some of the charges, could she really obtain a fair and unbiased jury trial after the intense media coverage? Is the language that the Judge used to express his desire that she not withdraw her plea enough to support a motion to recuse him at a trial? Obviously, the Judge picked a length of incarceration that is low enough to make it difficult for Duran to consider rolling the dice at trial. And ultimately even a 30 day jail term for a public official charged with violating the public’s trust is a heck of an outcome for any accused. The post Erlinda Johnson representing New Mexico Secretary of State in emotional sentencing appeared first on Women Criminal Defense Attorneys.
continue reading

Iris Bennett obtained an NPA for Florida Defense Company

IAP Worldwide Services Inc, a Florida defense and government contractor was represented by Iris Bennett of Smith Pachter with her partner Joseph Covington relating to a criminal investigation surrounding the company’s involvement in a conspiracy to pay bribes to officials in Kuwait to secure a government contracts in violation of the Foreign Corrupt Practices Act (FCPA). Bennett and her partner successfully negotiated a non-prosecution agreement with the Department of Justice for IAP this last June to resolve criminal charges against IAP.  Iris Bennett focuses her practice on investigations and white collar criminal matters. Before private practice she clerked for two federal judges and served as a federal public defender in the District of Columbia. The company agreed to pay a $7.1 million dollar penalty.  The agreement also called for continued cooperation by IAP and mandates that the company adopt a strict anti-corruption stance and create appropriate structures, systems and procedures to prevent corruption. The company will also regularly need to report to the Criminal Division regarding compliance. An ex-VP for the company, James Rama, was the only individual charged and he pled guilty to one charge of violating the Foreign Corrupt Practices Act (FCPA). No other high level executives were individually charged which was a strong focus in the defense argument at sentencing that took place this last October when Rama was ultimately sentenced to a significant jail term.  Read about the sentencing here.  One has to wonder what the outcome would have been to this company and its more high level executives post Yates memo if they hadn’t resolved this case in June? The drama all began in 2004, when the Kuwaiti government rolled out a plan called the Kuwait Security Program (KSP), which was designed to help national agencies surveil using closed-circuit TV. The project would involve a two-phase roll out. First would come a feasibility test, then an installation period. The Kuwaiti Ministry of the Interior helped choose contractors and planned to collect substantially more revenue in the installation phase (Phase II) than in the feasibility test phase (Phase I).   However, Rama and IAP (who later admitted to these facts in the non-prosecution agreement) made a play to work on the first phase so they could secretly tweak the requirements for the second phase to favor IAP and thus give the company a competitive advantage when it came to bidding. They created a fake company (“Ramaco”) to try to win the Phase I business without disclosing conflict of interest and won that bid, which was worth $4 million. Rama and IAP then diverted approximately $1,783,688 of that money to a consultant to bribe Kuwaiti officials and then funneled money to IAP from Ramaco through different accounts and contacts. The resolution is certainly a job well done by Iris Bennett and her partner. Congrats! The post Iris Bennett obtained an NPA for Florida Defense Company appeared first on Women Criminal Defense Attorneys.
continue reading

Elizabeth Macedonio and Diane Ferrone win a stunning victory in Asaro trial

Vincent Asaro was just acquitted at trial in the Eastern District of New York of charges related to the ‘Lufthansa Heist’ depicted in the movie GoodFellas.  And by his side at trial were two prominent female criminal lawyers: lead attorney, Elizabeth Macadonio, and co counsel, Diane Ferrone. This was probably one of the biggest mafia trials in most recent history – but unlike other organized crime trials, Vincent Asaro walked out of the courtroom flanked by his two lawyers after a jury acquitted him of all counts. I loved watching a video of Asaro walking out of the courthouse, arm around his two female criminal defenders saying, “I’d like to thank my two lawyers, without them I wouldn’t be here now.” You can watch the same video in the New York Times article, “Vincent Asaro, Accused in Lufthansa Heist, is Found Not Guilty.”   The trial has been closely followed by the media and was based entirely on paid Government snitches, including Asaro’s own cousin.  The defense reportedly did minimal cross examinations, and put on only two witnesses. They later came out swinging in closing argument, focusing on the credibility of paid snitch witnesses. It was reported that Macedonia argued that the cooperators were “despicable people” and “accomplished liars.” She went on to explain to the jurors that they would have to rely on career criminals, expert liars and confessed killers to convict Mr. Asaro – obviously points that were persuasive to the jury. You can read The New York Times detailed portions of the closing arguments here and in the Wall Street Journal here. Ironically, another fact that caught the media’s attention was the gender of Asaro’s counsel – I am not the only one paying attention to the strong defense provided by his female attorneys. Bloomberg Business published an article entitled ‘Goodfellas’ trial, macho lawyers give way as women take over,’ which called the Asaro trial both an ’anomaly’ and a ‘sign of progress’ for women in the field. The Bloomberg article also cited the fact that men are almost four times more likely to act as lead counsel in criminal trial defense based on the ABA study we highlighted early this year. The image of the acquitted client flanked by two women defenders is so powerful it transcends the case – more powerful than any article, blog post, or interview. It creates a lasting picture of women defenders, and speaks to the fact that we are fighters, victors, and successful. Bravo to Elizabeth and Diana for a job well done and for moving us all forward. The post Elizabeth Macedonio and Diane Ferrone win a stunning victory in Asaro trial appeared first on Women Criminal Defense Attorneys.
continue reading

Joan Meyer negotiates NPA for Swiss Bank Client

Just last week the Justice Department announced that three more banks reached resolutions under the Swiss Bank Program. All three banks entered Non Prosecution Agreements (NPA’s) with the Department of Justice. The financial settlements ranged from over 3 million to 59 million, and totaled approximately 81 million in penalties recovered by the US Government. Joan Meyer of Baker McKenzie represented Bank CIC, which entered into an agreement to pay over 3 million dollars in penalties. Joan is the chair of Baker & McKenzie’s North America Compliance and Investigations Practice Group, and she handles investigations and white-collar matters. A more detailed account of the Swiss Bank Program is described here.  Under the program, banks meeting the following requirements are eligible for a non-prosecution agreement (NPA): Make a complete disclosure of their cross-border activities; Provide detailed information on an account-by-account basis for accounts in which U.S. taxpayers have direct or indirect interest; Cooperate in treaty requests for account information; Provide detailed information as to other banks that transferred funds into secret accounts or that accepted funds when secret accounts were closed; Agree to close accounts of account holders who fail to come into compliance with U.S. reporting obligations; and Pay appropriate penalties. If you read the particulars of the cooperation in the press release and the NPA’s here, you will see that, as a component of that cooperation, the  banks also provided information on individuals — an extra step that was not strictly required. Is this the Yates Memo in action? I am not the only one who is asking those kind of questions, as they are also asked in an interview conducted with the law professor who wrote “Too Big to Jail.” It is certainly food for thought. But most importantly I wanted to congratulate Joan on a job well done for her client. The post Joan Meyer negotiates NPA for Swiss Bank Client appeared first on Women Criminal Defense Attorneys.
continue reading