CORPORATE CRIME REPORTER
DLA Piper’s Zeidenberg on Prosecutorial Misconduct, Stevens and Lindsey
25 Corporate Crime Reporter 48(12), December 13, 2011
Rarely do we see a corporation challenge the Justice Department in a major corporate crime case.
Hardly ever in a Foreign Corrupt Practices Act (FCPA) case.
And to win the challenge?
That would be never.
Until last week that is.
In May 2011, a federal jury in Los Angeles, California convicted Lindsey Manufacturing, its CEO and CFO on all counts.
Then the convicted defendants appealed to the trial judge, arguing that prosecutors engaged in misconduct.
And Judge A. Howard Matz threw out the convictions and dismissed the case against the defendants – with prejudice.
DLA Piper partner Peter Zeidenberg says that judges are starting take seriously white collar defense attorneys’ complaints about prosecutorial misconduct.
“You are seeing judges taking these allegations much more seriously than they have in the past. I don’t believe that the conduct of prosecutors has all of a sudden become worse than it was five years ago or ten years ago,” Zeidenberg told Corporate Crime Reporter in an interview last week.
“But you are finding that these arguments which defense attorneys make are now gaining traction in a way that they didn’t previously.”
“In the past, prosecutors represented to the court that they understood there were Brady violations, that they reviewed the file, and that they have turned over to the defense all evidence that is exculpatory.”
“And the judge turns to the defense attorney and says – I’m going to accept that representation on its face. And if you know of any particular piece of evidence that you are not being provided, let me know.”
“Well, it’s very hard to identify evidence whose existence you don’t know about.”
“At that point, the judge would simply be satisfied and take at face value those representations. I think some judges still do that. But what you are finding is that attitude is much more prevalent from the courts. And they are just more skeptical of blanket representations of that nature.”
How big of a deal is this for a judge to toss out a corporate crime case based on prosecutorial misconduct?
“It is exceedingly rare,” Zeidenberg said. “Obviously, something akin to this happened in the case of Senator Ted Stevens. In that case, the government confessed error and dismissed the case on its own.”
Zeidenberg is an alum of the Public Integrity Section at the Justice Department and he has been following the Stevens fallout closely.
“It was tremendously sad for me,” Zeidenberg said. “I knew the prosecutors. You hate to see something like that happen. It was very painful. It’s sad. I don’t see how anyone could look at it any other way.”
“Prosecutors aren’t out working to get rich or famous. They are working in a job and they are doing their best. When something like this happens and careers are damaged and reputations are damaged, it is hard not to feel very saddened by it.”
Why are judges starting to take pleas of prosecutorial misconduct seriously now?
“It largely stems from the Stevens case. And other judges are taking their cues from that,” Zeidenberg said. “Judges around the country are giving more credence to similar types of allegations than they had in the past.”
In the wake of the Stevens case, has the Public Integrity Section been crippled a bit?
“It’s very hard to say. The public is not privy to the prosecutorial decisions that are made, for example, decisions not to proceed,” Zeidenberg said.
Defense lawyers know, right?
“They may know that their guy was investigated about one incident,” Zeidenberg said. “But there is no global sense. It is very hard as an outsider to make a judgement about that.”
“The fact that the Public Integrity Section is pursuing the John Edwards case, for instance, would indicate that they are being very aggressive. That is a prosecution that many defense attorneys would say is being pursued under a pretty aggressive theory and one with not necessarily a high likelihood of success.”
“At the same time, we don’t know about other investigations they have been working on that they have decided not to pursue. There are many considerations that go into these decisions. What one person views as a courageous decision to take a tough case to trial, for the person charged, it can be a reckless decision to plunge ahead in a case with very little likelihood of success. It depends on which side of the coin you are looking at.”
[For the complete transcript of the Interview with Peter Zeidenberg, see 25 Corporate Crime Reporter 48(12), December 12, 2011, print edition only.]
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